Court-Martial Trial Practice

Daniel Epps, Harmless Errors and Substantial Rights. 131 HARV. L. REV. 2117 (2018). The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and…

The rule of lenity is something you should have in the toolbox regardless of being a trial or appellate counsel. Intisar A. Rabb, The Appellate Rule of Lenity: Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals. 131 HARV.…

Those of us who engage with discharge reviews, correction boards, and federal court on behalf of service-members are used to reading about the presumption of regularity–it’s a regular defense by the gubmint to an applicants claim. “I was improperly discharged.” A: “We can’t find any record of your discharge. Because of that we consider you…

You’ll remember Hills, Hukill, and Guardado. Basically, there are problems when the prosecution tries to invoke MRE 413 or 414 when all of the alleged events are charged. The result has been many cases being dismissed and sent for retrial or alternative actions. But, as reflected below, not all cases have a positive result for…

The author of this article clearly doesn’t understand. THE BIGGEST OBSTACLE TO THE PENTAGON’S WAR ON SEXUAL ASSAULT: THE MILITARY JUSTICE SYSTEM: A legal principle intended to protect service members after World War II has spawned a dangerous precedent.

Amy Howe, SCOTUSBlog reports on a new decision relevant to military practitioners. Opinion analysis: Justices decline to extend Fourth Amendment’s “automobile exception” When two Virginia police officers searched for the motorcyclist who had eluded them by driving away at speeds of up to 140 miles per hour, they probably would not have imagined that the…

The Supreme Court, however, “has long recognized that the military is, by necessity, a specialized society separate from civilian society” and “that the military has, again by necessity, developed laws and traditions of its own during its long history.” See Parker v. Levy, 417 U.S. 733, 743, 94 S. Ct. 2547, 2555, 41 L. Ed.…

Though not raised by Appellant, an error in the staff judge advocate’s recommendation (SJAR) compels us to remand the case for new post-trial processing. United States v. Spelts, Air Force Court of Criminal Appeals (May 2018). Now for this. The Government would be well-advised to find no solace in our resolution of this obvious error.…

Friend DP notes a pending Supreme Court petition in Gamble v. United States. It looks like the case was supposed to have been presented at Thursdays conference. Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause. If the court grants the petition and if the court rules in…

Meet service members entrusted with guarding nuclear missiles that are among the most powerful in America’s arsenal. Air Force records obtained by The Associated Press show they bought, distributed and used the hallucinogen LSD and other mind-altering illegal drugs as part of a ring that operated undetected for months on a highly secure military base…