UCMJ Tag Archives — Court-Martial Trial Practice Blog

Statute of Limitations

November 26, 2024 | The Law Office of Philip D. Cave

Statutes of limitations are legal deadlines for filing criminal charges. They are essential because:

Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.

Reasonable doubt

November 26, 2024 | The Law Office of Philip D. Cave

Reasonable doubt is the fundamental pillar protecting the rights of accused service members in a court martial. It is a legal standard that ensures a fair and just process and safeguards against the potential for wrongful convictions. The prosecutor must prove a case beyond a reasonable doubt, a crucial safeguard against false convictions. The BRD standard serves as a second cornerstone to a fair trial. BRD works alongside another cornerstone of the legal system- the presumption of innocence. The burden of proving guilt rests solely on the prosecution. The defendant does not have to prove their innocence. This principle helps to prevent wrongful convictions by ensuring that individuals are not punished unless the state can provide compelling evidence of their guilt. The high burden of proof helps to mitigate the potential impact of biases or errors in the justice system. It requires the prosecution to present objective evidence that can withstand scrutiny, reducing the risk of convictions based on prejudice, faulty eyewitness testimony, or flawed forensic evidence.

Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.

Parental Discipline

November 22, 2024 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has issued an important decision in

United States v. Brassfield, M.J. _ (Army Ct. Crim. App. 2024) (en banc)

The court reaffirms that a servicemember accused of assault against their child may raise the defense of “it was parental discipline.” The definition of what is or isn’t criminal corporal punishment has changed over the years. The Court of Military Appeals (CMA) (predecessor to the Court of Appeals for the Armed Forces (CAAF)), said so in United States v. Brown, 26 M.J. 148 (1988). The CMA adopted a two-part test from the Model Penal Code.

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.

Secretarial UI+

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

On December 6, 2023, the Secretary of the Army, Ms. Christine Wormuth, fired Brigadier General (BG) Warren Wells, the Army’s chief prosecutor and head of the Office of the Special Trial Counsel (OSTC), for an email he had sent ten years prior while in a defense counsel role. This firing demonstrates that no military defense counsel can be certain that doing their job and defending you will not come back to haunt them down the road. It will always be in the back of their minds.

In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

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.

Discovery

February 9, 2023 | The Law Office of Philip D. Cave

Here’s how we start our “discovery” requests–as “Disclosure Requests.”

The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States (2019),; Mil. R. Evid. 304(d)(1), 404(b), 705; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1999); and Brady v. Maryland, 373 U.S. 83 (1963). See also, Uniform Rules of Practice before Air Force Courts-Martial, dated 1 October 2020; Rules 3.2 & 3.3; AFI 51‑201; AFGM2020-02, Administration of Military Justice, dated 5 October 2020, paragraph 5.12; AFI 51-110, Professional Responsibility Program, dated 11 December 2018, Attachment 2 (Air Force Rules of Professional Conduct); Rules 3.3, 3.4, 3.8 & 4.2 and Attachment 7 (Air Force Standards for Criminal Justice), Chapter 5. These items are relevant under UCMJ art. 32(a)(2)(D) and which calls upon the preliminary hearing officer to make a referral recommendation.

NOTE: In the event charges are referred to trial, this disclosure request immediately becomes the FIRST defense discovery request.

United States v. Brassfield, __ M.J. ___ (Army Ct. Crim. App. 2024) (en banc)

United States v. Brassfield, M.J. _ (Army Ct. Crim. App. 2024) (en banc)