Navy-Marine Corps Appeals

Navy and Marine Corps Court Finds That Military Judge Properly Granted Mistrial After Prosecutor Failed to Provide Discovery to Defense Counsel

The Navy Marine Corps Court of Criminal Appeals recently decided the case of United States v. Cabrera. LCpl Cabrera was part of a group of Marines that went out to several bars one evening. LCpl Romeo (not her real name) was a member of the group and became intoxicated to the point that she blacked out. When she awoke the next morning, she found herself in LCpl Cabrera’s bed, with her pants down, and an individual penetrating her vaginally and anally. She froze and then fell back asleep or passed out and awoke later to find her pants back up and LCpl Cabrera on the floor next to the bed in which she slept. LCpl Romeo left LCpl Cabrera’s room and called the base sexual assault hotline.

Although LCpl Cabrera repeatedly texted and called LCpl Romeo in the days following the incident, LCpl Romeo did not give NCIS permission to conduct a forensic examination of her phone. NCIS was unable to recover the text messages from LCpl Cabrera’s phone. In advance of trial, the defense counsel asked to interview LCpl Romeo. LCpl Romeo declined and the defense counsel asked the trial counsel to provide detailed discovery concerning conversations with LCpl Romeo and any statements she made that were not included in, or contrary to, her original statements to NCIS.

At trial, during the defense cross-examination of LCpl Romeo, the subject turned to the text messages sent by LCpl Cabrera in the days after the alleged assault. During this cross-examination and the ensuing redirect by Trial Counsel, it became clear to the defense that Trial Counsel had not provided them with all of LCpl Romeo’s pretrial statements regarding the text messages and the alleged assault itself that were not included in, or contrary to, her original statements to NCIS. The defense requested that the Military Judge dismiss the charge against LCpl Cabrera with prejudice, which would not allow the Government to try him again. The Military Judge instead declared a mistrial in the case based upon several discovery violations committed by the Trial Counsel.

Following the declaration of a mistrial, the Government brought the charge to trial again, and the defense argued that LCpl Cabrera could not be tried again for the same offense because the Military Judge abused his discretion in declaring a mistrial instead of dismissing the charge with prejudice. The judge in the second trial denied this motion and LCpl Cabrera was convicted in the second trial and sentenced to punishment including a dishonorable discharge and confinement for seven years.

On appeal, the Court of Criminal Appeals determined that the Military Judge was right to declare a mistrial. This proper declaration of a mistrial meant that the Government was able to go forward with a second trial and the findings and sentence were therefore affirmed.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.

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