UCMJ Tag Archives — Page 15 of 50 — Court-Martial Trial Practice Blog

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.

It’s the fourth of July

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

When enlisting or at certain other times:"
I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).

When commissioning and at certain other times:
"I, _____ (SSAN), having been appointed an officer in the ____ of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God."

During the Revolutionary War, the Continental Congress established different oaths for the enlisted men and officers of the Continental Army:

Enlisted: The first oath, voted on 14 June 1775 as part of the act creating the Continental Army, read: "I _____ have, this day, voluntarily enlisted myself, as a soldier, in the American continental army, for one year, unless sooner discharged: And I do bind myself to conform, in all instances, to such rules and regulations, as are, or shall be, established for the government of the said Army." The original wording was effectively replaced by Section 3, Article 1, of the Articles of War approved by Congress on 20 September 1776, which specified that the oath of enlistment read: "I _____ swear (or affirm as the case may be) to be trued to the United States of America, and to serve them honestly and faithfully against all their enemies opposers whatsoever; and to observe and obey the orders of the Continental Congress, and the orders of the Generals and officers set over me by them."

Officers: Continental Congress passed two versions of this oath of office, applied to military and civilian national officers. The first, on 21 October 1776, read: "I _____, do acknowledge the Thirteen United States of America, namely, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, independent, and sovereign states, and declare, that the people thereof owe no allegiance or obedience to George the third, king of Great Britain; and I renounce, refuse and abjure any allegiance or obedience to him; and I do swear that I will, to the utmost of my power, support, maintain, and defend the said United States against the said king, George the third, and his heirs and successors, and his and their abettors, assistants and adherents; and will serve the said United States in the office of _____, which I now hold, and in any other office which I may hereafter hold by their appointment, or under their authority, with fidelity and honour, and according to the best of my skill and understanding. So help me God." The revised version, voted 3 February 1778, read "I, _____ do acknowledge the United States of America to be free, independent and sovereign states, and declare that the people thereof owe no allegiance or obedience, to George the third, king of Great Britain; and I renounce, refuse and abjure any allegiance or obedience to him: and I do swear (or affirm) that I will, to the utmost of my power, support, maintain and defend the said United States, against the said king George the third and his heirs and successors, and his and their abettors, assistants and adherents, and will serve the said United States in the office of _____ which I now hold, with fidelity, according to the best of my skill and understanding. So help me God."

You can see more of the history of U.S. military oaths at the U.S. Army Center of Military History.

I was encouraged, and then disappointed [amended]

July 3, 2010 | The Law Office of Philip D. Cave

Now, don’t get discouraged when your being encouraged doesn’t work out. Remember a primary court-room rule: never let them see they’ve hurt you. Not too long ago Judge Vowell was chief in the Army’s First Judicial Circuit. One of her rules of court was that both counsel must comply with Federal Rule of Civil Procedure 26(a)(2). Essentially she wanted a mini-brief on the experts. Here is what she said on the record in a prior case:

MJ: I’ll tell you that in following – I learned from the judges who work for me each day, and one of them has taught me that – take a look at Federal Rule of Civil Procedure 26, I believe, dealing with expert witnesses. Be prepared to file a notice as to what the witness’s qualifications are, and the basis for the testimony. Basically, this is a preemptive strike at the Daubert/Kumho Tire issues.

CDC: I’m happy to hear that, Judge, because you are the first judge who I’ve ever – in all the times I’ve said, ‘Let’s go to 26,’ I’m happy to comply.

Confirmation bias – again

July 3, 2010 | The Law Office of Philip D. Cave

I’m encouraged, as occasionally I am

July 3, 2010 | The Law Office of Philip D. Cave

In the world of military justice it’s the small things that seem most encouraging at times. So . . . In my standard Article 32, UCMJ, production request (based on R.C.M. 405(f)(9)(10) primarily) or trial discovery demand one of the provisions is this:

3. Declination to Produce or Disclose.

a. If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)). Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review. See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

Veterans unemployment rates

July 3, 2010 | The Law Office of Philip D. Cave

Air Force (and the other) Times reports:

The unemployment rate for veterans rose slightly in June, to 8 percent overall and 11.5 percent for Iraq and Afghanistan-era veterans, a sign that expanding programs aimed at helping veterans find work are not working in a stagnant job market.

June employment statistics released Friday by the Labor Department’s Bureau of Labor Statistics show the overall unemployment rate for veterans rose slightly from 7.8 percent in May. Still, the unemployment rate for veterans remains lower than the overall national rate of 9.5 percent.

Coast Guard collision

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

Coast Guard News reports:

Criminal charges ranging from involuntary manslaughter to dereliction of duty have been preferred by the Coast Guard against four boat crewmembers from Coast Guard Station San Diego in connection with a fatal collision between one of the station’s patrol boats and a civilian vessel in San Diego Bay late last year.

The charges were brought under the Uniform Code of Military Justice (UCMJ) and are based on information discovered by the Coast Guard investigators looking into the December 20, 2009, collision that resulted in the death of one child and the injury of other passengers on the civilian boat. Rear Admiral Joseph Castillo, commander of the 11th Coast Guard District, is the convening authority in the case.

Ms. Bligh may be soon adrift

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

Navy Times reports that:

The former cruiser skipper who was relieved of command in January after years of “cruelty and maltreatment” toward her crew will be required to show a Navy board why she should continue her career, a Navy spokesman said Thursday.

Capt. Holly Graf, who was fired as commanding officer of the Yokosuka, Japan-based cruiser Cowpens on Jan 13, will go before a Navy Personnel Command “show-cause board” within the next few months to make her case for staying[.]

Up periscope

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

Mountain Home News reports that:

The stepfather of the five-year-old child who accidentally shot and seriously wounded a Mountain Home high school student in February was convicted of reckless endangerment during a court-martial June 22[,] and sentenced to six month’s confinement and ordered to forfeit $500 pay per month for six months.

SignOnSanDiego reports:

Not always a fan

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

I’m not a fan of the Center for Military Readiness. But I have to acknowledge they at least raised a very important point about military sexual assault cases.

Read the various articles I’ve posted about confirmatory bias in connection with this piece from CMR about Sex, Lies & Rape. Although written in 2006, the points resonate today just as clearly.