Court-Martial Trial Practice Blog

Collateral consequences of being Titled

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

As many of you know, when CID/NCIS/OSI/CGIS starts an investigation into you they make a record. The subject line is your name plus other information. This is what is know as being “Titled.”

That information is submitted to NCIC as the equivalent of an arrest – even though you were not arrested, told you were arrested, or placed in custody. The Titling, plus the taking of fingerprints and photographs gets you into the database, and you aren’t getting out for 40 years.

Here is a 2000 DoDIG report.

Overcharging conspiracy

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

It is routine for military prosecutors to overcharge in courts-martial. They feel the more they can pile on the worse it makes the accused look. So that’s why you might see a charge of murder along with a charge of spitting on the side-walk.

One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy. The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago. The case was tried in 2012, and the first stage of appeal was decided in February 2015. The next stage is CAAF.

In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion. The prosecution had it’s way in overcharging on this issue. But that didn’t pass muster with the appeals court. In ruling for the defense the court repeated basic principles.

Using SVC statements against. . .

February 13, 2015 | The Law Office of Philip D. Cave

Teaching point about SVC’s and how the defense may be able to use them to the benefit of the defense.

Not too long ago I had a SVC making oral argument on a MRE 412 motion.

During the course of the SVC presentation it occurred to me that she was representing facts AND statements of the complaining witness which were inconsistent with other statements of the complaining witness.

More refusniks to be deported

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

In August 2012, I noted a decision made by the Canadian court.

Canada has ordered the deportation of a female soldier who fled the U.S. military in order to avoid the war in Iraq, officials said Thursday. [Army Times]

Now we have this:

Soft precedent or something else

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

In this day and age you’d wonder why all appellate decisions are not “published.” Many of not all are available either to lawyers through a research service or the general public through court websites. So what’s going on; some attention is being paid to the topic of unpublished opinions.

For the non-lawyer it is important to know, whether or not you understand it, that only “published” opinions are binding precedent on the lower courts, and a matter of stare decisis for appellate courts.

PrawfsBlawg reports:

An interesting certification

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

No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 20201300341. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 2, 2015.

A history note

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

Military appellate lawyers know the mantra:

This Court has an independent obligation to review each case de novo to ensure the factual and legal sufficiency of the findings. Article 66(c), UCMJ, 10 U.S.C. § 866 (2012); United States v. Turner, 25 M.J. 324 (C.M.A. 1987). In doing so, this Court is empowered to substitute its judgment for that of the trial court. Id. When deciding legal insufficiency, the test is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2004). A review of legal sufficiency is limited to the evidence introduced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). As for factual insufficiency, “the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,” this Court is unconvinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325; see also McMurrin, 72 M.J. at 706.

That’s the standard of review when the court of criminal appeals reviews a case.

I have to wonder

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

In today’s military I have to wonder what people may be thinking. Some time ago the Army had a prostitution scandal. Now apparently the Navy.

Prostitution is illegal and various acts involving prostitution are illegal under the UCMJ.

The Stars & Stripes has this report today.

The Burris trial

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

The Army JAG Corps has been rocked with some significant sexual assault allegations. One of them involved Major Erik Burris, who until last year was the Chief of Justice (senior prosecutor) at Fort Bragg, NC. He has now been convicted himself of various sexual assault allegations, and has been sentenced to serve 20 years confinement as part of his punishment.

The charges: two counts of rape, four counts of assault and one count each of forcible sodomy and disobeying an order from a superior commissioned officer. Burris was cleared of four counts of assault and two counts each of sexual assault, forcible sodomy and communicating a threat.

I wonder if the members of his court-martial were aware of his comments about sexual assault prosecutions, which arose from in court testimony in two unrelated cases.

Less rapes nationwide

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

The FBI reports that allegation of rapes (revised definition) declined 10.1 percent, in the first half of 2014.