Court-Martial Trial Practice Blog
In United States v. Robertson the accused was charged with CP related offenses and violation of restriction.
Here is why as a trial I and my colleagues would, and you should consider–pick the serious and solid charges and leave the detritus out. When you have a solid CP case you don’t need a minor charge on the sheet–it may screw things up a bit. Fortunately no serious effect in Robertson, but there could have been.
That which is simple need not be made complex, and creative charging decisions in cases that are based upon simple facts can lead to legally insufficient convictions. This is such a case.
Even drawing every reasonable inference in favor of the government in this case, we still find appellant’s conviction for violating his company commander’s order legally insufficient. This case is a perfect example of a faulty charging decision precluding the government from obtaining a conviction that is correct in law and fact. See UCMJ art. 66(d)(l).
In the end the error made no difference to the CP conviction or the sentence. But, what happened took unnecessary time on the record, and appellate lawyers and an appellate court time they could have devoted to other more serious issues.
Even if not charged, the conduct might have been admissible on sentencing if for no other reason than that it demonstrates a lack of rehabilitative potential. LRP is arguable in sentence for the decision to impose a punitive discharge.
In my years of doing appeals I, and my colleagues, will tell you that a lot of silly stuff on appeal can be avoided at trial–KIS.