A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to…
Continue reading ›A press release alerts us to several proposals for the NDAA FY 2023 which could affect military justice. One addresses Supreme Court access (something NIMJ has long advocated for), and another is the question of unanimous verdicts post-Ramos v. Louisiana. A third addresses a suspect’s records (and their removal) when “Service member is subject to…
Continue reading ›Let’s begin with 10 U.S.C. § 1553a. (a)Establishment.— The Secretary of Defense shall establish a process by which to conduct a final review of a request for an upgrade in the characterization of a discharge or dismissal. (c)Definitions.—In this section: (1)The term “final review of a request for an upgrade in the characterization of a…
Continue reading ›Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in the reports submitted to prosecutors…
Continue reading ›My argument is no, and as military defense lawyers, this is our position at a court-martial trial held under the UCMJ. In State v. Terrance Police, 2022 Conn. LEXIS 123 (May 10, 2022), the issue was whether “touch DNA” was good enough for probable cause to get an arrest warrant. Here is the important part…
Continue reading ›Probably not successfully based on AV2 v. McDonough, No. 22-369, 2022 U.S. Dist. LEXIS 72609 (D.D.C. April 20, 2022) and E.V. v. Robinson, 906 F.3d 1082, 1086 (9th Cir. 2018) certiorari den. 140 S.Ct. 501, 205 L. Ed. 2d 316 (2019). In each of these cases, a military judge had granted discovery of mental health…
Continue reading ›Well, calls for change to the new changes for the prosecution of sex crimes have already begun. During the Conference over the NDAA FY 22, sexual harassment was removed from the list of covered offenses under the jurisdiction of a special trial counsel (STC). But, the President was tasked to enumerate an offense of sexual…
Continue reading ›Does the defense in a court-martial under the Uniform Code of Military Justice (UCMJ) have to give discovery about your defense to the prosecution? Yes, sometimes. There are several rules set out in the Manual for Courts-Martial that your military lawyer or civilian defense counsel knows about. The rules are contained in Rule 701. Special…
Continue reading ›Last year the Committee on Rules of Practice and Procedure Judicial Conference of the United States requested public comment on proposed changes to several rules of evidence. On page 299 of the request, you will find the proposed evidence rules. We are most interested in Rule 702, which deals with experts and expert testimony. The…
Continue reading ›February 14, 2022, U.S. v. E-3, United States Air Force, Sheppard Air Force Base, Texas. Airman is accused of sexually assaulting two different Air Force enlisted women and is placed into pretrial confinement. After being retained to defend the Airman, Mr. Freeburg is able to show through numerous witness interviews that there were serious issues…
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