Court-Martial Trial Practice Blog

A long trail

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

No. 15-0330/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE.

The decision of the Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of United States v.Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).

This is important to today as well

April 19, 2015 | The Law Office of Philip D. Cave

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

A collateral effect of the “new” Article 32 PH

April 11, 2015 | The Law Office of Philip D. Cave

Under the “old” Article 32, the right to call and examine witnesses and to obtain production (discovery) of evidence was pretty robust.

All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing. That audio could then be transcribed into a verbatim transcript. The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.

The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.

Sergeant Captain may have some major issues

April 8, 2015 | The Law Office of Philip D. Cave

On today’s CAAF daily journal we find:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. 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 specified by the Court:

WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.

When process is due–you might get a little more

April 7, 2015 | The Law Office of Philip D. Cave

[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.

United States v. Herrera, __ F.3d ___ (10th Cir. 2015).

USvPlant oral argument

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

Marquette University Law School will host oral arguments for the court martial appeal of a U.S. Air Force sergeant accused of sexually assaulting two girls and endangering his baby son.

So says the Wisconsin Bar Journal.

Here is an link to a preview by a colleague.

Can you succeed on appeal in a sexual assault case?

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

The question is often asked of me–can we win on appeal, will the appellate courts give a fair hearing and review.

In United States v. Soto, the Air Force Court of Criminal Appeals (AFCCA) reviewed the factual sufficiency of appellant’s conviction for rape and any lesser included offenses.

A military judge accepted the appellant’s pleas of guilty to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery.

DD214 numbers

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

A sophisticated employer knows how to interpret the numbers and language in the DD214. The codes are easily findable on the internet. This creates an issue with coding for early separation due to draw-down measures. So the following came over the transom.

DD 214 SEPARATION PROGRAM DESIGNATOR NARRATIVE

The DD Form 214, which is issued to all servicemembers upon discharge from military service, includes the discharge status (honorable, other than honorable, etc.) as well as a Separation Program Designator code and narrative reason for the separation, such as Force Shaping (Board Selected), Reduction in Force, Insufficient Retainability (Economic Reasons), or Early Retirement.

Heads up on soliciting donations-recruiters-instructors beware

March 30, 2015 | The Law Office of Philip D. Cave

On 28 January 2015, DoD issued an instruction (DODI 1304.33) protecting against inappropriate relationships during recruiting and entry level training.

Paragraph 1.a.(1)(k) of Enclosure (3) of this instruction expressly prohibits recruiters and trainers providing entry level training from soliciting donations from a recruit or trainee.

Apparently there have been questions concerning the impact of this instruction on various fund drives such as the NMCRS Active Duty Fund Drive (ADFD), and the Combined Federal Campaign.

Is there an SVC crisis?

March 29, 2015 | The Law Office of Philip D. Cave

I am for (and against) the SVC program. I am mostly for it because it is necessary. Over the years and prior to the Air Force start there were regulations in place that required the trial counsel to inform the “victim” of what was happening in the case and get their input. The trial counsel were not doing the job and in some instances deliberately refused to follow the guidance. By example, a trial counsel who refuses to let the complaining witness know about pretrial negotiations, and who got upset when I gave the CW a copy of the pretrial agreement offer. Which leads to two reasons I’m not necessarily in favor of the SVC program.

Because the trial counsel routinely failed in their requirements, I got in the habit of asking the CW during my interview if they “knew what was going on?” They’d say “no, not really.” I would then take the opportunity to tell them what was going on. I would tell them that I was the defense counsel telling them this and they are welcome to confirm with the trial counsel. At that moment the interview had some lessened tension. In several cases I’m convinced that my “helping” the CW understand what was going caused her to modulate anger against my client and it may have helped later. So now that’s a lost opportunity.

I do have some concerns about the potential for SVC’s exceeding the scope of their responsibility to their client and the court. Whether or not those concerns are supported will be open to discussion for some time to come. There is a potential concern for coaching as opposed to preparing a CW for testimony. Trial and defense counsel prepare but don’t (shouldn’t) coach a witness. It’s perfectly proper to prepare for testifying. In one particular case I was concerned about a SVC who objected to questions unrelated to MRE 412 or 513 during an Article 32. That’s not their place or responsibility.