Court-Martial Trial Practice Blog

Opening the door-or keeping it closed

June 25, 2015 | The Law Office of Philip D. Cave

As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered. MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door. I might have successfully litigated a motion in limine to exclude evidence. But now I have the key and have to be careful I don’t give it to the prosecution to use.

There are other ways the defense can open the door to otherwise inadmissible evidence. United States v. Martin just decided by NMCCA is a case in point. Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.

Manual for Courts-Martial-new

June 23, 2015 | The Law Office of Philip D. Cave

Here is a link to the MCM changes effective 17 June 2015.

I wonder if Sen. G knows?

June 4, 2015 | The Law Office of Philip D. Cave

A former client directed me to the Air Force Reporter, Vol. 42, No. 1 (2015).

In reading about an aspect of his case, my eyes rolled down to this. It is on page 50.

CASE 2 Prior to a court-martial, a Special Victims’ Counsel (SVC) advised a client that the SVC would not be attending the trial in person due to a personal conflict, but that if the client needed anything to let the SVC know. The SVC did not notify supervision and did not make arrangements for another SVC to attend the trial in their absence. The court-martial started with several motions that involved the client. Following the motions hearing, the client contacted the SVC and requested that the SVC attend the remainder of the court-martial. The SVC attended the remainder of the court-martial proceedings.

Prosecution misconduct

June 2, 2015 | The Law Office of Philip D. Cave

We often hear of prosecution misconduct going unchallenged or undisciplined. Two events this week are noteworthy though in efforts to hold prosecutors accountable.

Armstrong v. Daily, et. al., is a case out of the Seventh. The M-W Journal Sentinal extracts this:

He brought a civil rights suit against the prosecutor on his case, John Norsetter, and two crime lab workers, Karen Daily and Dan Campbell. All three sought to have Armstrong’s suit dismissed on immunity grounds, but the 7th Circuit U.S. Court of Appeals affirmed the trial judge’s refusal to grant that request:

Did your lawyer tell you about clemency and parole?

May 26, 2015 | The Law Office of Philip D. Cave

The Georgia Supreme Court extends Padilla

In Alexander v. State, decided on May 11, the Georgia Supreme Court agreed that a failure to advise on parole issues from a guilty plea was ineffective assistance under Strickland v. Washington.

Military lawyers know there are two specific areas they must ensure adequate advice about to clients: the possible impact of sex offender registration and possible adverse citizenship and immigration decisions. Now–at least in Georgia–you can add one more: impacts on clemency and parole.

Another one bites the dust`

May 20, 2015 | The Law Office of Philip D. Cave

Listen up: “Every occasion of a proved false allegation has an insidious effect on public confidence, sometimes allowing doubts to creep into when one shouldn’t exist.” Said the judge on sentencing.

That’s right, the failure to hold people accountable for false accusations harms true victims.

Col Christensen of POD says this doesn’t happen and that people don’t make false allegations for these reasons. Sorry mate, read this.

How extensive is the Brady obligation

May 6, 2015 | The Law Office of Philip D. Cave

Ask the prosecutor in this case.

In re Kline.

Military prosecutors are bound by Service rules of professional responsibility. Those rules are based on the ABA Model Rules.

False reports and false claims

May 3, 2015 | The Law Office of Philip D. Cave

1 May 2015 saw the release of a number of reports and memorandums regarding military sexual assault. Some initial takeaways (which in my view certain people are either deliberately ignoring or misreporting).

No POD, the conviction rate is not 5%– the conviction rate is 67% for penetrative offenses, and 84% for non-penetrative (conctact) offenses.

If POD is claiming only a 5% conviction rate, then they are presuming guilt in each allegation made, regardless of the truth of the claim and the amount of evidence available.

Worth the read

May 3, 2015 | The Law Office of Philip D. Cave

E. Samuel, An Historical Account of the British Army: And of the Law Military, as Declared by the Ancient and Modern Statutes, and Articles of War for Its Government with a Free Commentary on the Mutiny Act, and the Rules and Articles of War; Illustrated by Various Decisions of Courts Martial, (1816).

Worth the read

May 1, 2015 | The Law Office of Philip D. Cave

There are two items from Canada that are worth the read.

Marie Deschamps, C.C. Ad.E., External Review Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015.

Under the standard articulated by Criminal Code and the Supreme Court of Canada, genuine consent may be communicated by word or conduct. However, where either party indicates by any means—verbal or not—that he or she is uncomfortable or reluctant to continue with the sexual activity, an obligation crystallizes on the other party to specifically obtain consent before proceeding any further. While the Court did not explicitly require that this consent be verbal, as a practical matter where there is doubt as to whether or not a party has consented to sexual activity, the only clear way to dispel such doubt will be to verbally seek consent.