Court-Martial Trial Practice Blog

News on mental health related administrative discharges

June 2, 2016 | The Law Office of Philip D. Cave

SecNav has signed a new policy on administrative separations for misconduct where the person has a mental health issue.

To protect Sailors and Marines suffering with post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) or any other diagnosed mental health condition, Secretary of the Navy Ray Mabus has made his department the first in the military to assure such conditions are considered before separating a service member.

Previously a service member’s misconduct took precedence over diagnosed mental health conditions when considering separation, which impacted the veteran’s ability to receive benefits. Now, if it contributed to the misconduct, the medical condition will take precedence.

Did DoD lie to Sen. Gillibrand

June 2, 2016 | The Law Office of Philip D. Cave

Senator Gillibrand accused DoD of lying to her about certain sexual assault statistics.

Defense Secretary Ash Carter is pushing back on reports that the Pentagon misled Congress on its handling of sexual assault cases, blaming misunderstandings and a lack of access to some information.

Now here is the letter SecDef Carter sent in response.

Otherwise unaware

June 2, 2016 | The Law Office of Philip D. Cave

A 31 May 2016 grant at CAAF.

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

Retaliation is bad, but what is it

June 2, 2016 | The Law Office of Philip D. Cave

Now available:

05-09-2016, Investigative Oversight, Evaluation of the Separation of Service Members Who Made a Report of Sexual Assault (Project No. 2015C012), DODIG-2016-088.

The report does not necessarily define what retaliation is–that’s a failing. Unfortunately people will start to believe it’s whatever the complaining witness says it is, even though something isn’t and shouldn’t be considered retaliation.

Another prosecution error in argument

June 2, 2016 | The Law Office of Philip D. Cave

As people know, I follow closely issues of improper prosecution argument. Trial counsel’s arguments present an opportunity for significant error and perhaps a new trial. Well, this snapped my head when first read.

Appellant, a married African-American adult of 27 years, raises a complaint under Grostefon which merits discussion. He asserts government counsel referred to him in a racially offensive manner by calling him “boy” twice. Specifically, appellant characterizes as racial epithets government counsel’s remark in closing, “This old boy was ‘Courtin’ n Sparkin’.’” (quotations in original), and subsequent argument in rebuttal, “And they keep harping on the fact that he’s not a big-ole boy.”

We have carefully considered the context surrounding counsel’s use of the word, “boy,” noting our nation’s highest court’s view thereof: “Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” In this case, appellant was elsewhere described as acting as if he had an immature crush on SPC PK, and we are confident in concluding that this—rather than “racial animus”—was the backdrop for the comments.

A word to the unprepared

June 2, 2016 | The Law Office of Philip D. Cave

Here’s an interesting summary disposition from CAAF.

No. 16-0468/AR. U.S. v. James H. Lee. CCA 20140309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel was ineffective in failing to identify and investigate potential mitigation evidence for the presentencing hearing. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND INVESTIGATE POTENTIAL MITIGATION EVIDENCE.

A word to the unwise

May 31, 2016 | The Law Office of Philip D. Cave

Recently, in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016), the (unnamed and not me or several of my closest friends) civilian defense counsel was held in contempt for late filing of a motion. It appears this was not the first time in the case for the same counsel of missed deadlines. The decision drew some angst among the military justice literati. Based on the facts as written in the opinion, I’m not troubled by the decision. We must wait a few weeks to see whether the appellant will petition CAAF (will let you know).

Today I’m reading and reviewing a new record of trial (Air Force as well). It appears the defense filed a significant motion the day before trial. The prosecution asserted they were not prejudiced by the late filing. The military judge had this to say.

MJ: Understood. This seems part of a disturbing trend of counsel thinking that the week before trial is the time to begin case preparation. I’ve also heard this in the context of a request for continuance or docketing request that counsel feel the need to, as of right, have a week on site before every case, and I’ll just remind counsel that case preparation is an ongoing endeavor that should begin when the evidence is received, if not beforehand, and I really see no valid excuse for failure to file these motions in a timely manner. That being the case, as I stated, it’s just fraught with appellate peril for me to impose any sanction of any sort, so I find it somewhat amusing that I read comments from defense counsel saying that we don’t do enough to hold trial counsel’s feet to the fire when they violate discovery obligations, but correspondingly, the defense counsel basically has carte blanche, absent me pulling out the extreme contempt gavel, to ignore the scheduling orders of the court. And so it’s with great consternation that I will not impose any sanction at this point. The accused should not be the one who has to suffer for his dilatory counsel.

Just a reminder–IAC possibly on sentencing

May 29, 2016 | The Law Office of Philip D. Cave

We tend to focus on IAC issues to do with the merits, which on occasion includes a failure to investigate. Here is a CAAF reminder, to us andACCA.

No. 16-0468/AR. U.S. v. James H. Lee. CCA 20140309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfindinghearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel was ineffective in failing to identify and investigate potential mitigation evidence for the presentencing hearing. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND INVESTIGATE POTENTIAL MITIGATION EVIDENCE.

Sexual assault and law of war-worth the read

May 29, 2016 | The Law Office of Philip D. Cave

Something here for the downrange SJA/BJA.

You’ll remember this:

Joseph Goldstein, U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies, N.Y. Times (Sept. 20, 2015),http://nyti.ms/1KrOuSM.

It’s hearsay-worth the read

May 29, 2016 | The Law Office of Philip D. Cave

Captain John S. Reid, as this “Is It Hearsay? A Practical Primer,” in 43 The Reporter, No. 2 (2016), for a quick and good review of the various hearsay rules.