Court-Martial Trial Practice Blog

Where is the SVC

June 2, 2017 | The Law Office of Philip D. Cave

In United States v. Battles, No. 20140399 (A. Ct. Crim. App. 31 May 2017), the court asked:

Where in the World is Captain Danenberger?

That he is named in the court opinion will tell the lawyer that this is a bad story. “After conclusion of appellant’s trial, an embarrassing and unnecessary sideshow unfolded. The central figure in this drama is PFC LL’s SVC—Captain (CPT) John Danenberger. While we will explain in more depth, CPT Danenberger essentially mislead various individuals about his whereabouts, missed a court hearing, and then tried to deflect blame by breaching his duties to his client by implying his client had been untruthful in her testimony. While CPT Danenberger’s lack of candor was the fuel for this conflagration and his breach of professional standards was the spark that set it ablaze, the resulting fire likely should have been quickly extinguished. Instead, a multi-month drama unfolded.”

Worth the Read

May 29, 2017 | The Law Office of Philip D. Cave

David F. Jacobs, Fifth Amendment in the Digital World, 43 THE REPORTER 2 (2017). This should be read considering the recent Air Force Article 62, UCMJ, appeal in United States v. Blatney, Misc. Dkt. No. 2016-16 (A.F. Ct. Crim. App. 22 May 2017) (unpub.). In Blatney the OSI gained consent to search the accused’s phone and also had him agree to “unlock” the phone. See also, United States v. Robinson, No. ACM 38942 (A.F. Ct. Crim. App. 15 May 2017)(unpub.).

Bradford D. Bigler, Rebalancing Military Sentencing: An Argument to Restore Utilitarian Principles Within the Courtroom. 225 MIL. L. REV. 1 (2017). This should be read after doing some reading on restorative justice. I have for some years been advocating with SJA’s and convening authorities a pretrial agreement more focused on the principles of restorative justice. In that vein, I have had some success in obtaining some creative agreements. The simplest has been direct restitution to the victim or complaining witness. As an example, the payment of a significant dollar amounts directly to the victim—as restitution. Such agreements must be negotiated through the SJA and commander to avoid ethical issues by dealing directly with the victim. I have also seen a case or two where the client was accused of obstructing justice by seeking to negotiate their own resolution with the alleged victim—this is a critical concern in the messy divorce and child custody case.

Have a case with these issues? Give me a bell (a British expression for a phone call) at 703-298-9562 or drop an eMail to mljucmj@court-martial.com.

A Hills-Hukill trailer of interest

May 29, 2017 | The Law Office of Philip D. Cave

In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces decided that–

[B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence that would otherwise not be admissible — was error. Neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.

M.R.E. 413 otherwise allows the prosecution to introduce evidence of other similar sexual offenses to “prove” a pattern of sexually assaultive behavior. It’s profile evidence (and it’s wrong, but the law allows it). Hills was a members case! As a consequence, the trial and lower appellate courts were limiting Hills to members cases only and refused to apply Hills to judge alone cases–until–

Who decides–a lawyer or a not a lawyer

May 29, 2017 | The Law Office of Philip D. Cave

The ongoing discussion about removing the line officer convening authority from making court-martial decisions is not new, nor are the criticisms of how a military justice process should work. Check out–

Fred L. Borch, Military Justice in Turmoil: The Ansell-Crowder Controversy of 1917-1920. ARMY LAWYER, Feb. 2017.

The tipsy judge? I don’t think so, but possibly an unfortunate meme

May 11, 2017 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has decided the case of United States v. Heath, adverse to the appellant. The question to be resolved “is whether SPC XX’s testimony was admissible as a prior consistent statement.”

The case has a fairly sparse discussion but worth reading because of its resolution of an evidentiary issue under the new Mil. R. Evid. 801. The court applied the “Tipsy Coachman Doctrine” to find the military judge arrived at the correct result, even if for the wrong reason. The TCD is explained more fully in United States v. Carista, 76 M.J. 511 (Army Ct. Crim. App. 2017).

The principle is sometimes referred to as the “tipsy coachman” doctrine. See, e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“This long-standing principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.'”) (citation omitted). Georgia Supreme Court Justice Bleckley quoted Oliver Goldsmith’s 1774 poem, Retaliation, to illustrate the concept.

Not in the military – mostly

May 5, 2017 | The Law Office of Philip D. Cave

The state of Maryland is no longer pursuing sexual assault charges against two teenagers who were accused of dragging a 14-year-old girl into the bathroom of Rockville High School and raping her.

The accused students, 18-year-old Henry Sanchez Milian and 17-year-old Jose Montano, are reportedly immigrants who entered the U.S. illegally. That made them people of great interest for foes of illegal immigration: Right-leaning pundits cited the pair as evidence that our schools were threatened by armies of illegal immigrant rapists.

Now the case against the two teens has collapsed. According to The Washington Post:

An unusual summary disposition

May 3, 2017 | The Law Office of Philip D. Cave

Last year we took up the appeal of an Army sergeant. After reading the record of trial, I went to meet with the client at the JRCF, Fort Leavenworth, KS to hear from him. (I make every effort to visit an appellant client in person.) We investigated and interviewed witnesses to develop a case of ineffective assistance of the military defense counsel.

We filed our brief asking for a Dubay hearing to investigate the claims. The Army court ordered a Dubay hearing. A Dubay hearing is uncommon. The Order is here.

We represented the client at the Dubay hearing. The military judge issued his findings of fact and conclusions of law (which are here)

Just over the transom from NACDL

May 1, 2017 | The Law Office of Philip D. Cave

48,000. That is the approximate number of collateral consequences – specific legal restrictions, generalized discriminated and the overall social stigma – returning citizens face. These collateral consequences can adversely impact access to housing, employment, occupational licensing, education, public benefits and voting.

Last month NACDL partnered with Prison Fellowship to celebrate April 2017 as Second Chance Month. NACDL believes that individuals with an arrest or conviction should be afforded a second chance to become productive members of society without the stigma of collateral consequences that limit their potential. The U.S. Senate recently passed S. Res. 129 declaring April 2017 as Second Chance Month.

Currently pending in Congress are two opportunities to ease the collateral consequences of a conviction – the Fair Chance Act (H.R. 1905/S. 842) and the REDEEM Act (H.R. 1906/S. 827). The Fair Chance Act would “ban the box” at the federal level. The REDEEM Act, or the Record Expungement Designed to Enhance Employment Act, would create a mechanism for adults and youth to have their records expunged or sealed.

Retirees for courts-martial anyone?

May 1, 2017 | The Law Office of Philip D. Cave

A gasp went up recently about the likely recall of a retired general officer for court-martial prosecution. (It’s my understanding that he’s not actually been recalled, merely that the SecArmy has determined to exercise jurisdiction. He’ll be brought on “active duty” close to trial.) See, e.g., Oriana Pawlyk, Retired General Accused of Sexual Assault Faces Uncertain Future. Military.com 8 Sept. 2016. There are historical examples, not many, of retirees being recalled for prosecution for conduct while on active duty. I expect to see a modest increase in the recall of retirees for sexual assault allegations.

Here’s another.

In United States v. Reynolds, retired First Sergeant Reynolds was accused of various assaults on some Marines while on active duty. It appears that he’d: