acca Tag Archives — Court-Martial Trial Practice Blog

What can we do for you

April 17, 2024 | The Law Office of Philip D. Cave

Military service is a noble calling, but it can also lead to complex legal situations. When facing accusations or disciplinary actions, having experienced legal representation is crucial. Cave & Freeburg, LLP stands firmly behind service members across all branches (Army, Navy, Marine Corps, Air Force, and Coast Guard) with a proven track record of success in a wide range of military legal issues. Here’s how Cave & Freeburg, LLP can be your military defense lawyer and advocate:

1. Court-Martial Defense:

A court-martial is a serious matter that can result in a dishonorable discharge, imprisonment, and a ruined career. Cave & Freeburg, LLP brings decades of combined experience to your defense. Their attorneys have a deep understanding of the Uniform Code of Military Justice (UCMJ) and extensive experience navigating the complexities of court-martial trials and appeals. They will:

Military ineffective assistance of counsel

February 21, 2023 | The Law Office of Philip D. Cave

In the context of a court-martial, ineffective assistance of counsel refers to a claim by a military defendant that their defense counsel provided them with legal representation that fell below an objective standard of reasonableness and that this deficient representation prejudiced the outcome of their case.

Under the Uniform Code of Military Justice (UCMJ), military defendants have the right to be represented by counsel at trial. If a defendant believes that their defense counsel provided them with ineffective assistance, they can raise this claim on appeal. The standard for evaluating claims of ineffective assistance of counsel in a court-martial is the two-part test established in Strickland v. Washington, a case decided by the U.S. Supreme Court in 1984.

Under the Strickland test, the defendant must show that their counsel’s performance was deficient and that this deficient performance prejudiced the outcome of the trial. Deficient performance means that the attorney’s representation fell below an objective standard of reasonableness, and prejudice means that there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different.

New CCA opinions

November 12, 2010 | The Law Office of Philip D. Cave

Navy.

1. United States v. Curry. This is a BAH case.

The Government proceeded on a theory of a fraudulent marriage as a basis to commit larceny by trick.
The court held oral argument in this case and specified two additional issues to the parties.2 Additional pleadings were later filed. After carefully considering the record of trial and the pleadings of the parties, we decide this case based solely on the assigned error and conclude that the evidence was factually insufficient to sustain the finding of guilt as to the charge of larceny, either on the proffered theory of larceny by trick or under a possible theory of wrongful withholding.

New ACCA unpublished opinion

October 1, 2010 | The Law Office of Philip D. Cave

United States v. Stanley.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief. Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated. Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

LTC Lakin Writ sitrep

September 30, 2010 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals rules are here. As previously indicated there is no “deadline” for the filing of a writ petition in this situation, but once a petition is filed several deadlines and requirements kick in. Like DMLHS I have a request in for a copy of the petition. Note that in Cheney v. United States District Court, 542 U.S. 367 (2004), the equitable doctrine of laches arose and was discussed in regard to a late filing of a petition for mandamus.

Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights[.]

The following Rules are relevant to a writ.

LTC Lakin sitrep

September 29, 2010 | The Law Office of Philip D. Cave

Humor in military lawyering is good. Humor is good. Standby for a comment from DMLHS tonight.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature. I had missed the piece noted by Reality Check (thanks!). Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help. (WUSA9 — http://goo.gl/Am1Q)

ACCA on post-trial honorable discharges

September 15, 2010 | The Law Office of Philip D. Cave

Here is a link to United States v. Brasington., decided 13 September 2010. It is not unusual for an appellant to be issued a DD214, Honorable Discharge, sometime after a court-martial at which the appellant was adjudged a punitive discharge.

In this case, we are asked, following remand, whether an honorable discharge, effective after this court’s affirming a sentence that included a bad-conduct discharge, has the effect of remitting that discharge. We hold appellant’s administrative discharge was voidable, properly voided, and did not remit appellant’s premature discharge.

This was a rather odd situation because the appellant was an active duty Soldier and it was the Reserve command giving him the discharge. ACCA found that the Commander, HRC-StLouis had no authority to discharge appellant.

Finding no dramatic change

July 4, 2010 | The Law Office of Philip D. Cave

In United States v. Morton, ACCA on remand from CAAF found no “dramatic change in the penalty landscape” and affirmed the sentence imposed at trial.

On first review ACCA had set-aside two specifications regarding a falsification of a sick-slip under Article 123, UCMJ. But ACCA then affirmed two specifications thought to be closely related to the dismissed specifications. CAAF dismissed the two specifications and said that:

By dismissing those specifications, our superior court rang the death knell of the “closely-related offense” doctrine. United States v. Morton, 69 M.J. 12, 13 (C.A.A.F. 2010). Also as part of their decision, our superior court returned the record of trial to The Judge Advocate General for remand to this court for sentence reassessment.

Graner decided

June 25, 2010 | The Law Office of Philip D. Cave

CAAF has decided United States v. Graner. Graner loses.

We granted review in this Abu Ghraib case to determine whether the military judge abused his discretion in (1) refusing to compel the Government to produce certain memoranda requested by the defense; (2) excluding the testimony of, and an e-mail
from, Major Ponce; and (3) limiting the testimony of a defense expert witness. We hold that the military judge did not abuse his discretion in any of these decisions and affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

A new approach to Rodriguez?

May 29, 2010 | The Law Office of Philip D. Cave

In United States v. Rodriguez, 67 M.J. 156 (C.A.A.F. 2009), cert. denied, 130 S. Ct. 459 (2009) the court changed years of practice when it came to late filings of petitions for review with CAAF. In Rodriguez the court held that:

In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we conclude that the congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional [and may not be waived or extended regardless of cause].

The effect was to deny an opportunity for an appellatant to petition on meritorious issues or have access to the United States Supreme Court. Prior to Rodriguez it was not uncommon for appellate counsel and appellants to miss the CAAF petition filing deadline, sometimes by just a few days. The reasons for the missed filing generally came down to administrative error within the appellate defense divisions. For various reasons filing deadlines weren’t being tracked accurately. It’s my understanding that the divisions have taken measures to correct the problems. However, there were a series of cases post Rodriguez where the appellant was denied access to CAAF based on Rodriguez. While unfortunate, for those that had no seemingly meritorious issues to petition on there was likely no prejudice. But what about those cases where the appellant had a good issue (regardless of whether or not it was a winner)?