rcm Tag Archives — Court-Martial Trial Practice Blog

New Army Lawyer II

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

In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench. (I have noted over the years that it takes most judges about a year to get their relative bearing.) I think we can all echo his comments and find a myriad of examples from our own and other cases. What I wanted to comment on though was something in the section about keeping track. If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

Litigation by Media and Congress

December 21, 2009 | The Law Office of Philip D. Cave

For some years now, primarily relating to Iraq/Afghanistan cases there has been lots of litigation by media and congress. The current move to save the SEALs by congress is just the most recent example of seeking to influence a court-martial case. The “litigation” has been both for and against the military member. We all remember the issue of Congressman Murtha calling for prosecution of a Marine for alleged misconduct. Whether such litigation is good for the system and the UCMJ is a different question. In this day and age of millisecond journalism and sound-bites here are a couple of thoughts and a caution. LawProf blog has posted:

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Prosecutorial Soundbites: When Do They Cross the Line? (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:

Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas.

Coast Guard 32 done

December 18, 2009 | The Law Office of Philip D. Cave

The military’s case against a Coast Guard captain accused of violating military code wrapped up Thursday with the officer’s lawyers admitting their client committed adultery and fraternized with enlisted women — but, they said, his behavior was not criminal.

Anchorage Daily News reports.

Here are some factors that will be considered by the IO, the SJA, the CA, and . . .

The Rule of Lenity

December 5, 2009 | The Law Office of Philip D. Cave

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”

From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as an argument regarding application of an R.C.M. or Mil. R. Evid., an argument by analogy I suppose. Another way to express this would be that where there is an ambiguity the ambiguity should be construed against the writer. Perhaps there is some hope?

In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application…

UP: News roundup

November 20, 2009 | The Law Office of Philip D. Cave

Army Times reports that Major Hasan has had or is about to have a pretrial confinement hearing at Fort Hood. A hearing is required within certain time periods under R.C.M. 305. R.C.M. 305 is a regulation in the manual for courts-martial that implements due process for someone detained for a crime. The military does not have bail. The person is either detained or released into restriction to base or personal recognizance during the time of the court-martial. It is unlikely that Major Hasan will be released onto Fort Hood. The issue appears to be whether he is physically fit for confinement as certified by a medical doctor.

Army Times and AP report that an AWOL soldier wins stay of Canadian deportation.

Canada’s Federal Court says the country’s refugee board must reconsider the case of a lesbian who deserted the U.S. Army.