As military defense counsel, we at Cave & Freeburg, LLP, have experience with MPOs and problems with them.

Also, being given an MPO may be the first sign that you are under investigation and what it is about. When that happens, as military defense lawyers we may be able to help with the MPO, and most importantly, with how the investigation and case proceeds.

A recent appellate decision shows how complex the problems can be.

Background

The case revolves around the appellant, an Air Force member, and his volatile marriage with his ex-wife, JC. The couple met in technical school, married via double proxy, and lived together at Joint Base Elmendorf-Richardson. The appellant faced allegations of domestic violence and violations of military protective orders (MPOs).

Domestic Violence Allegations

1. Slapping Incident (July–November 2021)

   • JC testified that while crying in the bathtub, the appellant angrily confronted her.
   • She claimed she was crying because he had strangled her earlier that day.
   • The appellant yelled at her, and during the argument, he allegedly slapped her.

2. Grabbing Incident (May 2022)

   • JC encountered the appellant in a parking lot and told him to stay away.
   • He followed her to her car, got into the back seat, and aggressively grabbed her arm and phone when she tried to call her superior officer.
   • CCTV footage confirmed their meeting but not the specific details of the altercation.

Protective Orders and Alleged Violations

• In response to escalating conflicts, the appellant’s commander issued MPOs in November and December 2021, restricting him from contacting JC electronically or through third parties.
• A reciprocal MPO was later issued to JC.

Alleged Violations:

1. Tweets about JC – JC discovered and screenshotted tweets where the appellant indirectly mentioned her. His profile bio also referenced her. However, there was no evidence that he directly messaged or tagged her.
2. “Find My” iPhone Notification – JC received an alert suggesting the appellant attempted to locate her via the app. However, there was no direct evidence proving he intentionally initiated this action.

Legal and Factual Sufficiency Challenges

The appellant challenged his convictions for both domestic violence and disobeying orders under Article 90, UCMJ, arguing insufficient evidence.

1. Legal Standard for Review:

   • The court assessed whether any rational factfinder could have found him guilty beyond a reasonable doubt.
   • Circumstantial evidence and reasonable inferences were considered valid.

2. Analysis of Charges:

   • Disobeying a Superior Officer: The court debated whether tweeting about JC or triggering the “Find My” alert constituted “initiating contact.” The defense argued these actions did not actively establish communication.
   • Domestic Violence: The case relied on JC’s testimony and circumstantial evidence, but no additional witnesses or forensic evidence corroborated her claims.

Key Findings

• The prosecution failed to prove that the appellant directly initiated communication via Twitter or “Find My,” leading to doubts about his disobedience conviction.
• The domestic violence charges relied solely on JC’s testimony, with limited supporting evidence.
• The court examined whether the weight of the evidence justified the guilty findings beyond a reasonable doubt.

Conclusion

The case hinged on interpretations of “initiating contact” and the credibility of testimony. The court’s factual sufficiency review focused on whether the evidence was compelling enough to sustain the convictions under military law.

If you have a court-martial appeal, then contact us to discuss. We have been military appellate defense counsel for many years and have practiced before the Air Force, Army, Coast Guard, and Navy-Marine Corps courts of criminal appeals as well as the Court of Appeals for the Armed Forces.

Visit our home site at www.court-martial.com for case results and examples of our work as military defense counsel.

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.

It’s worth noting that coram nobis appeals are generally considered to be a rare and extraordinary remedy, and they can be difficult to win.

Several factors are important.

• How soon after the conviction was final on appeal did the information become known?
• Once known, how quickly did you file a coram nobis petition?
• How significant is the evidence that it significantly impacted the fairness of the trial and verdict?

In civil law, there is a doctrine of laches. Courts will not hear a case if the person has waited too long to take legal action. While not a complete analogy–

Laches is a legal doctrine that bars a claim if it is brought too late, to the extent that the delay has prejudiced the opposing party. It is based on the idea that a person who unreasonably delays bringing a claim can be penalized since the delay may cause undue prejudice to the other party.

In order for laches to apply, the following elements must generally be present:

1. The party asserting the claim has unreasonably delayed in bringing it.
2. The delay has caused prejudice to the opposing party, such as by making it more difficult for them to defend against the claim or by causing them to rely on the belief that the claim would not be asserted.
3. The opposing party has acted in good faith during the period of delay.

Laches is commonly used as a defense in civil lawsuits, particularly in cases involving breach of contract, property disputes, and patent infringement. It is often raised when a plaintiff has waited an unreasonable amount of time to bring a claim, and the defendant has suffered harm as a result.

It’s worth noting that the application of laches can vary depending on the specific facts of the case and the jurisdiction in which the case is being heard. You can see then why criminal cases and their appeals can adopt the same analysis.

Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008) is an example of where the court decided that a claim of IAC was subject to coram nobis. That result is driven by the specific facts of the case.

Note that a petition for coram nobis is not the same as a petition for a new trial based on legal errors at the trial. Although like coram, the CAAF has said in United States v. Hull, 70 M.J. 145 (C.A.A.F. 2010), that “requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence.”

It’s important to consult with an experienced military defense attorney to determine whether a coram nobis appeal is viable in a particular case.