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
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
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
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
Post Traumatic Stress Disorder (PTSD) is real and it affects numerous servicemembers. While all of the services have implemented policies to try to eliminate the stigma that was once put on a servicemember seeking mental health, some servicemembers are still hesitant to talk about their mental suffering. I have met with clients from time to … Read more
During a court-martial, a defense counsel may make a motion to the military judge for a mistrial. If a motion for a mistrial is granted by the military judge, then the servicemember’s court-martial is terminated. The charges and specifications in the court-martial are withdrawn and returned to the convening authority. The convening authority can then … Read more
The law has long recognized that a husband and wife have a sacred relationship and that they should not be forced to turn on each other in a court of law. The Military Rules of Evidence 504 provides a husband and wife two different types of spousal privileges at a court-martial. The first type of … Read more
If you have left your place of duty without proper permission, you are Absent without Leave (AWOL) in violation of Article 85, UCMJ. Depending on the length of time you have been away and the circumstances upon which you left, you could be a deserter. If you left your unit to avoid hazardous duty such … Read more
You are not alone if you feel this way. Pleading guilty at a court-martial is very different than when a civilian pleads guilty at his civilian criminal trial. In a court-martial involving a guilty plea, the military judge conducts what is called a “providence inquiry.” During this inquiry the military judge has a lengthy discussion … Read more