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I recently posted how the Army Court of Criminal Appeals had reversed my client’s child sexual abuse conviction in U.S. v. Swift.  In a rare move, the government appealed that decision to the Court of Appeals for the Armed Forces.  Yesterday, the CAAF agreed with us, and denied the government’s appeal.  This means my client … Read more

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You may have a valid appeal from your court-martial simply based on an administrative error in the transcript.  Recently, the Court of the Appeals for the Armed Forces (CAAF) in U.S. v. Davenport remanded the case because testimony from a government witness was completely missing from the transcript.  CAAF determined that the absence of an … Read more

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Depending on your circumstances, the answer is probably “both.”  If you start by asking for a records review, you then get a second chance to request a personal appearance.  In most cases, I advise that you request a records review first, so that you can then request a personal appearance if you do not get … Read more

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No.  You should never speak to a potential witness in your court-martial, Article 15 proceeding, NJP proceeding, or even a potential witness in a criminal investigation.  If you speak to that witness, you may put yourself at risk for being charged with another offense, “Obstructing Justice,” under Article 134 of the U.C.M.J.  To be guilty … Read more

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Whether or not to enter into a pretrial agreement prior to your court-martial really depends on the facts of your case.  A pretrial agreement, sometimes called a “PTA,” may be offered to an accused opting to plead guilty to the court-martial charges he is facing.  In exchange for pleading guilty, sometimes the command will offer … Read more

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Discriminatory or selective prosecution occurs in the military when the command, in bad faith, singles out an individual for prosecution at a court-martial while not prosecuting another servicemember who was alleged to commit the same or similar offense.  For example, if two servicemembers were equally involved in a theft and only one faces prosecution because … Read more

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Yes.  A convicted appellant may find relief on appeal by arguing that the proof provided by the government during his court-martial was legally and/or factually insufficient to support the conviction he received.  Legal insufficiency means that a reasonable fact finder (court-martial panel or military judge) could not have found that the proof presented met the … Read more

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If you are in this situation, you may be able to get another look from a promotion board.  If you can show that there was a material error in your personnel records or that they were missing material information when the records were reviewed by the board that decided to pass you over, you can … Read more

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Yes.  Under Military Rule of Evidence (M.R.E.) 614, the panel members and/or the military judge in a court-martial may call witnesses and ask questions of witnesses despite the fact that they are neither the prosecutor nor the defense counsel in the court-martial.  If a member of the court-martial panel wishes to ask a witness a … Read more

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As I review military appellate decisions, I sometimes find myself amazed at the facts leading up to the court-martial.  For instance, recently I read an Air Force case, U.S. v. Lovely, where the appellant was questioned by an Air Force Special Investigator and was indecisive about requesting an attorney.  At first, he affirmatively requested an … Read more