Court-Martial Trial Practice Blog

Worth the read

March 10, 2015 | The Law Office of Philip D. Cave

A couple of items have come across the transom today which are worth the read to military practitioners.

James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, Fed. Sentencing Rep. Dec. 2014, at 72-87. This items comes from the current Chief Judge, the Court of Appeals for the Armed Forces. His term of office will expire shortly, but the name of a new judge is not yet published. By tradition, the next senior judge will fleet up to become the chief judge.

Col Robert F. Holland, USA, JA (Ret), Unique Procedural Aspects of Court-Martial Sentencing by Jury (sic), 27 Fed. Sentencing Rep., No. 2, Dec. 2014.

Maoist indoctrination?

March 9, 2015 | The Law Office of Philip D. Cave

When [persnonnel] hear nothing but one side of controversial issues for their entire time[], what you have is not true education but Maoist indoctrination in the guise of education. When the academic consensus on any issue with political overtones can be predicted with 100% certainty merely by identifying the Politically Correct position, the consensus no longer means anything.

The state of legal scholarship

Quick note about Quick sentence reassessment

March 9, 2015 | The Law Office of Philip D. Cave

There is a conflict of opinion concerning the authority of this Court to reassess sentences. The language of Article 66(c), UCMJ, its legislative history, and the decision of the Supreme Court in Jackson v. Taylor, 353 U.S. 569, 1 L. Ed. 2d 1045, 77 S. Ct. 1027 (1957), give this Court the responsibility and unfettered authority to reassess a sentence, even after modifying the approved findings. On the other hand, our superior court holds that the service courts may only reassess a sentence after a finding of prejudicial error if the court was convinced that the sentence, as reassessed, is not greater than the sentence that the original court-martial would have imposed. United States v. Eversole, 53 M.J. 132 (2000); [11] United States v. Taylor, 47 M.J. 322, 325 (1997); United States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). In United States v. Sills, 56 M.J. 556, 571 (A.F. Ct. Crim. App. 2001), set aside on other grounds, No. 02-0048/AF (15 Jan 2002), we analyzed these conflicting precedents, and HN8 concluded we are bound by the will of Congress and the decision of the Supreme Court. While the Manual for Courts-Martial gives this Court the authority to order a new hearing on sentence, it does not require us to do so. R.C.M. 810(a)(2) and 1203(c)(2).

United States v. Roper, 2002 CCA LEXIS 24, 10-11, 2002 WL 169256 (A.F.C.C.A. Jan. 24, 2002).

In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014),[1] No. 15-0347/MC. CCA 201300341, (C.A.A.F. 30 January 2015),[2] the Judge Advocate General certified the following issue to the Court of Appeals for the Armed Forces (CAAF).

Recovered memory-or-making it up?

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

The Navy-Marine Corps Court of Criminal Appeals recently, in United States v. D.W.B., __ M.J. ___ (N-M Ct. Crim. App. 2015), had to decide “a complex and controversial topic: the admissibility of a witness’s testimony regarding memories recovered through a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR).” Slip op. at 2.

BLUF: the military judge did not abuse his discretion in concluding that KB’s testimony was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.

In Coker v. Georgia, 433 U. S. 584 (1977), the Supreme Court held that the Eighth Amendment bars the use of the death penalty as punishment for the rape of an adult woman, where there is no homicide. The question was left open about a non-homicide rape of a child.

More on prosecutorial discretion-and why discovery is important

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

Observer Media asks:

When will they ever learn? Ninth Circuit Judge Alex Kozinski declared months ago in a much-quoted opinion that there is “an epidemic of Brady violations abroad in the land.” And yet, prosecutors continue to deny there’s a problem. Indeed, the Department of Justice gets outright indignant at the suggestion, and so do many state court prosecutors. They bristle at the very mention of the possibility.

But here’s another doozy: The People (of California) v. Efrain Velasco-Palacios. In this unpublished opinion from the Fifth Appellate District, the California Court of Appeal reveals that state prosecutors and California Attorney General Kamala Harris continue to be part of the problem. Kern County prosecutor Robert Murray committed “outrageous government misconduct.” Ms. Harris and her staff defended the indefensible—California State prosecutor Murray flat out falsified a transcript of a defendant’s confession.

Worth the read

March 5, 2015 | The Law Office of Philip D. Cave

United States v. D.W.B.

Government charging-lack of preparation and caring

February 28, 2015 | The Law Office of Philip D. Cave

Unusual for me, but I did a guilty plea case this week.

Going in to the case and throughout the case the client was accused of a lot of offenses, some of which were a course of conduct over a period of time. Not unusual, right, so we had some right and left dates.

So, you are dealing with a government that takes the view you plead to this – X Y Z – or no deal. You get to the point where you say fine. You and the client take the deal.

Army 32 Procedures

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

Army Directive 2015-09 (Implementation of Section 1702 of the NDAA for FY14) Article 32 UCMJ Preliminary Hearing

Here are Army procedures in which they attempt to regulate “new” Article 32 hearings.

I’ll leave it to you to decide if they are:

Distinguish between volition and memory-lack of memory doesn’t mean lack of volition

February 22, 2015 | The Law Office of Philip D. Cave

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision. This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective. But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases. The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

Cell tower positioning

February 21, 2015 | The Law Office of Philip D. Cave

It has been some time since I’ve had a case where it was necessary to have “cell tower” evidence to “locate” the client.

Here is an interesting piece in The New Yorker.

On May 28th, Lisa Marie Roberts, of Portland, Oregon, was released from prison after serving nine and a half years for a murder she didn’t commit. A key piece of overturned evidence was cell-phone records that allegedly put her at the scene.