Court-Martial Trial Practice Blog

Some useful articles for March 2022

March 13, 2022 | The Law Office of Philip D. Cave

Orin Kerr, The Fourth Amendment and Geofence Warrants: A Critical Look at United States v. Chatrie. Lawfare, March 12, 2022.
Cave, Christensen, Fidell, Fissell, and Maurer, The Division of Authority Between the Special Trial Counsel and Commanders Under the Uniform Code of Military Justice: Planning Now for the Next Phase of Reform. Lawfare, February 28, 2022.
Yes, Chevron comes up in military cases (at least 42). See, e.g., United States v. Alkazahg. 81 M.J. 764 (N-M Ct. Crim. App. 2021); United States v. Johnson, 76 M.J. 673 (A. F. Ct. Crim. App. 2017) rev. denied 77 M.J. 17 (C.A.A.F. 2017); Amy Semet, Statutory Interpretation and Chevron Defense in the Appellate Courts: An Empirical Analysis. 12 U.C. IRVINE L. REV. 621 (2022).

Unanimous verdict litigation

January 29, 2022 | The Law Office of Philip D. Cave

In United States v. Ferreira. ARMY MISC 20220034 (A. Ct. Crim. App. Jan. 28, 2022) The government has filed for and received a stay of proceedings in this case based on the military judge’s decision in United States v. Dial,” that he will instruct the jury that they must have a unanimous vote for guilty to any of the charges.

The government has petitioned for a Writ of Prohibition as they have done in Dial. Here is a link to the government’s petition filed in United States v. Dial, ARMY MISC 20220001 (A. Ct. Crim. App. Jan. 4, 2022).

In 1775, the Second Continental Congress adopted the British Articles of War for the Continental army. The Articles did not require unanimous verdicts in courts-martial findings. That a military jury can find a service member guilty with less than unanimous votes remains the law. That law now conflicts with the law in all U.S. jurisdictions since the Supreme Court decided the case of Ramos v. Louisiana in 2020.

Erroneous prosecutor arguments

January 19, 2022 | The Law Office of Philip D. Cave

Over the last several years, I have noticed quite a few cases on appeal challenging improper arguments made by the prosecutor. Here is a short burst on a recent approach I have taken.

Standard of review

Prosecutorial error in making an improper argument is a legal question reviewed de novo. If there is no object to the errors, this Court applies a ‘plain error” standard of review. An appellant must show “(1) there is an error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017); United States v. Erikson, 65 M.J. 221 (CA.A.F. 2007); United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).

Mental Responsibility

November 25, 2021 | The Law Office of Philip D. Cave

MJBB–Mental Responsibility

Alternate fee sources

November 1, 2021 | The Law Office of Philip D. Cave

Civilian counsel don’t always get paid by the client. Rather, it oftentimes can be the parents or a family member. Technology and other innovations have brought us crowdfunding and organizations set up to help defray legal fees for a court-martial accused.

I recently participated in a Zoom discussion about this topic and its ethical concerns.

Here is a link.

Accepting a pardon is accepting guilt?

September 26, 2021 | The Law Office of Philip D. Cave

With the Trump pardons, the question came up, again, whether accepting a Presidential pardon is an acknowledgment of guilt.

For many, Burdick v. United States, 236 U.S. 79 (1925), answered the question in the affirmative. In Burdick, the appellant was offered but declined a pardon. He then refused to testify in a criminal trial. Several conclusions seem to follow from the opinion.

A pardon can be given before conviction and sentence. If correct, this settles the discussion about several Trump pardons issued before the servicemember was tried.

“Believe the victim”–encouraging a presumption of guilt?

September 25, 2021 | The Law Office of Philip D. Cave

For your reading. R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

Short take on the military COVID program

September 3, 2021 | The Law Office of Philip D. Cave

Marijuana legalization

August 1, 2021 | The Law Office of Philip D. Cave

“Thinking about bringing marijuana on base? Weed rather you didn’t,” the Naval Submarine Base posted on Facebook on July 1, the day possession of marijuana became legal in Connecticut. “State law legalizing possession of marijuana doesn’t apply to military installations.”

A few weeks later, the sub base posted a graphic with the message, “We’re going to be blunt. Don’t bring marijuana on base.”

Active-duty and civilian Navy personnel hope their puns will grab people’s attention and get the message through.

Compelled vaccination

August 1, 2021 | The Law Office of Philip D. Cave

A servicemember can refuse to take a COVID vaccine–BUT there are potential disciplinary consequences.

Military law is clear that a servicemember can be ordered to submit to vaccinations. This happens at the beginning of enlistment when you are required to have or get certain vaccinations. This is a long-standing practice when reporting to MEPS for medical screening.

When deploying to certain overseas locations vaccinations to protect against local disease are required.