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Do you and your lawyer need a delay--a continuance being the legal term here.

Good planning in advance of scheduling trial helps avoid the need for delay later on.

Keep in mind, the closer to trial when you ask for a delay, the less likely you might get one. Your military defense lawyer should already be aware of this.

As a military defense lawyer I have found that the main reasons for delay closer to trial are because the prosecution itself has not been doing their job efficiently. It's not uncommon for prosecutors to wait until a week or two before beginning their case preparation. At that point you and your military defense counsel can expect a flurry of "new" discovery. It's not new, it's just the prosecution's lack of diligence makes it just then provided--have your military defense lawyer hold their feet to the fire on this. Don't be shy about asking for delay and putting the blame where it lies!

But, you are preparing for trial, you conclude that a continuance is necessary, you request a continuance, and you lay out all the possible reasoning consistent with the Miller factors---denied.

Please don't don't let your lawyer do what two military defense counsel did in one case, which was to do nothing once the MJ denied their continuance request. See United States v. Galinato , 28 M.J. 1049, 1989 CMR LEXIS 488 (N-M.C.M.R. 1989).

In United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), and United States v. Weisbeck, 50 M.J. 461, 464 (1999), the CAAF set out a non-exclusive list of factors that a military judge should examine when deciding to grant or deny a continuance (either for the defense or the prosecution)

  1. Surprise.
  2. Nature of the Evidence.
  3. Timeliness.
  4. Substitute Testimony or Evidence.
  5. Availability of Witness or Evidence Requested.
  6. Length of Continuance.
  7. Prejudice to Opponent.
  8. Prior Continuances.
  9. Good Faith of Moving Party.
  10. Reasonable Diligence of Moving Party.
  11. Possible Impact on the Verdict.
  12. Prior Notice.

See also Francis A. Gilligan Frederic J. Lederer, Court-Martial Procedure § 18-32.00, at 704 (1991).

A careful military defense counsel will make sure that they have very good explanations for each of the above points. Keep in mind, that some lawyers gain a reputation for always wanting delay and being less than reasonably prepared--they are the ones who will likely have a hard time addressing items 9 and 10 above.

I'm not a Boy Scout, but I remember to be prepared.

Contact me for a free consultation on your case, and we can discuss how I can help you in your Article 32, trial, or appeal.

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Many years after retiring from the USN, I suddenly found myself in a very unwelcome legal matter with the Navy. It was a total shock and I was very concerned as to the impact this would have on me and my family. Philip was so helpful, truly a calming force, and his legal help was invaluable to me, I am so thankful that I availed myself of his services! Rob
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Mr. Cave saved my military retirement! His promise to me from day one was that he would fight as hard as he could he right the wring that had been done to me. And he did! I am so very thankful and grateful to him. He genuinely cared about me and made my case his priority. He used all his experience and knowledge to put forth a good defense. I am very pleased with him and will recommend him to anyone in need of an attorney. Crystal