caaf 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:

An appellate win for client convicted of sex offenses

December 22, 2023 | The Law Office of Philip D. Cave

This week we received the decision of the Army Court of Criminal Appeals of a client accused of homosexual sexual assaults.

He had been convicted and sentenced to 14 years of confinement.

We raised many issues during his appeal. The Army Court found a serious error by the military judge in denying the defense presenting evidence of other sexual acts of the alleged victim. This issue usually comes up in a Military Rule of Evidence 412 motion. Here, the military judge botched it.

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.

Military Coram Nobis

February 17, 2023 | The Law Office of Philip D. Cave

A “coram nobis” appeal is a legal procedure used to challenge a criminal conviction or sentence after all other legal avenues for relief have been exhausted. It is a form of post-conviction relief available in some U.S. states and federal and military courts.

Coram nobis appeals are generally limited to situations where there is newly discovered evidence that was not available at the time of trial or sentencing or where there was a fundamental error in the original trial that has since been revealed. The appeal aims to correct errors that would have changed the outcome of the case if they had been known at the time of the original trial.

The jurisdiction for coram nobis appeals varies depending on the jurisdiction where the original conviction occurred. In some states, the appeals are filed in the same court that originally heard the case, while in other states, they are filed in a higher court. In federal court, coram nobis appeals are filed in the same court that originally heard the case, and the jurisdiction is determined by the location of that court. In courts-martial, a coram nobis petition is usually filed with the court of criminal appeals.

Impeaching the verdict

February 16, 2023 | The Law Office of Philip D. Cave

United States v. Filmore.

1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense objection) gets the defense and government, and court to agree there was an error and to get a new sentencing hearing.[1]

2. It is NEVER EVER a good idea for an accused (or one of his witnesses)[2] to impeach the verdict. Gone are the days when we could legally seek reconsideration of the findings, even through sentencing. The legitimate tactic at the time was to present the accused’s version of events through his unsworn and then argue that the members may wish to reconsider the findings.

Impeachment by . . .

August 5, 2012 | The Law Office of Philip D. Cave

To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that

A statement is not hearsay if:

1. The declarant testifies and is subject to cross-examination about a prior statement.

2. The declarant testified under oath at a prior “hearing” or “or proceeding.”

You could have this

October 24, 2010 | The Law Office of Philip D. Cave

For all of the criticisms of military justice and the UCMJ, you don’t have this at court-martial as tipped by Sentencing Law & Policy blog.

Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer’s recommendation for his client. The report was "misleading and inaccurate," Cargill wrote in a protest letter. (Emphasis added.)

Here is a link to the full article in the Roanoke (VA) Times.

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.

Authenticity

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

Here’s a reminder about authenticating emails based on a posting from Prof. Colin Miller at EvidenceProfBlog. To paraphrase Prof. Miller:

And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

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)