Claim OwnershipLitigator Libations
Subscribed: 9Played: 404
Subscribe
© 2025 Litigator Libations
Description
Updates and tips on defensive litigation in military justice including discussing recent appellate decisions and providing advocacy tips.
93 Episodes
Reverse
Send us a text In today's episode we say farewell to long-time host Darrel Johnson and officially welcome our new hosts, Sam Castanien and Trevor Ward! In so doing, we discuss United States v. Saul & United States v. Navarro-Aguire, two cases that speak to the providence of a guilty plea and the importance of clarifying inconsistencies during the Care inquiry. We then discuss United States v. George, an important case that makes new law on how the appellate courts will evaluat...
Send us a text In this week's episode we discuss one CAAF case, one N-MCCA case, and the reversing the script on MRE 404(b). The CAAF case is United States v. Patterson, where CAAF declines to second guess the AFCCA on factual sufficiency because it is statutorily restricted to reviewing questions of law. The N-MCCA case has several issues, including the permissive inference in a no-BCD SPCM, the Confrontation Clause, and the Constitutionality of a mandatory no-BCD SPCM in a drug ...
Send us a text In today's episode we discuss two cases from the Court of Appeals for the Armed Forces: United States v. Johnson, which cements the conclusion that military appellate courts will not correct an erroneous indorsement to the Statement of Trial Results or Entry of Judgment requiring firearm prohibitions; and United States v. Thomas, which discusses the burdens on the defense and government under Batson v. Kentucky . . . even though it is not at all clear that that case appli...
Send us a text In this week's (lengthy) episode we discuss United States v. Taylor, which deals with the statutory requirements that must be satisfied when involuntarily recalling a reserve member to active duty for purposes of court-martial (and how they differ from the statutory requirements that must be satisfied to subject the reservist to UCMJ jurisdiction). We then discuss United States v. Harborth, where the issue was whether the government must have probable cause before accepti...
Send us a text This week we discuss United States v. Brinkman-Coronel, where the CAAF acknowledges that cellular phones are unique under the Supreme Court's Fourth Amendment analysis, but then presses on to treat third party consent to the search of a cell phone in the same manner as third party consent to search a brief case. Disappointing. We then hear from Captain Elliot Ko with a very thoughtful discussion of MRE 513 in regard to Family Advocacy records -- including ...
Send us a text In this week's episode we discuss the AFCCA case of United States v. Hunt, where the AFCCA applies the new factual sufficiency analysis and concludes that the government failed to prove guilt beyond a reasonable doubt -- a huge defense win. We then hear from Allen Abrams on Military Rule of Evidence 105 -- Allen does an excellent job of conveying the importance of the rule and how defenders can harness its power to ensure evidence is used in the manner most bene...
Send us a text Today Lt Col Allen Abrams joins to discuss the case of United States v. Shafran. The issue in the case is an Article 134 specification that failed to include words of criminality, such as "wrongfully" or "unlawfully." The case provides an excellent vehicle for Allen to provide defenders with considerations and options for attacking defective specifications. We then hear from the Free Speech Dynamic Duo - Trevor Ward and Sam Castanien who apply the current...
Send us a text In this episode we discuss United States v. Caswell, where the Air Force Court of Criminal Appeals declined to follow the bench book and CAAF precedent, because it found that by moving the offense of unlawful possession of a concealed dangerous weapon from Article 134 to Article 114, the nature of the offense changed to put more onus on the unlawfulness element. Therefore, it declined to apply the "permissive inference" that previously allowed the factfinder to ...
Send us a text In this episode we discuss the case of United States v. Urieta, where CAAF found an abuse of discretion in a military judge's failure to grant a defense challenge for implied balance in light of the liberal grant mandate. We also discuss United States v. Valentin-Andino, which makes clear that "appropriate relief" may not feel like any relief at all to the client. We also get to hear from Major Rebecca Saathoff on strategic considerations w...
Send us a text This week we discuss the CAAF case of United States v. Greene-Watson, which is another case addressing Military Rule of Evidence 404(b) and the very thin line between common scheme or plan and propensity under CAAF's recent case law. We also here from contributor Captain Jeffrey Critchlow on the history, evolution, and current state of the law regarding the spousal communication privilege.
Send us a text In this episode Sam Castanien and Trevor Ward return with a great discussion on Free Speech law in military justice - particularly in regard to the possession of obscene cartoon, anime, or computer generated images that the government attempts to charge as child pornography. Making her Litigator Libations debut, is Rebecca Saathoff providing important information on how courts-martial and appellate review can impact your client's online presence. Two great discussio...
Send us a text Today we discuss the CAAF case of United States v. Campos, decided on February 19, 2025. It is an important case for defense counsel because the court provides important distinctions between what might be admissible as aggravation evidence in the prosecution's sentencing case, but is improper in an unsworn victim impact statement. We then hear from Major Ciara Ryan who discusses how to object when the government notices M.R.E. 404(b) evidence, but the evidence they ...
Send us a text This week we discuss United States v. Davis, where the majority at CAAF held that where a military judge removes himself from a case to avoid granting a defense motion, and then details a different judge to the same case in hopes of the motion being denied, was not structural error and, although wrong, did not prejudice the appellant. We then hear from Captain John Fredericks on a recent trend of represented victims refusing to appear at MRE 412 or MRE 513 motion hearings...
Send us a text In this episode we discuss the CAAF case of United States v. Shelby, which was an Article 62 appeal of the military judge dismissing an abusive sexual contact charge with prejudice. The CAAF held that the military judge abused his discretion by applying the cumulative error doctrine at the trial level. We then pass on a hot take from Captain Riley Vann, who educated me on the Boyfriend Loophole to firearm prohibitions upon conviction of a misdemeanor crime of domest...
Send us a text In today's episode we discuss the Air Force Court of Criminal Appeals case of United States v. Rocha, which considers the constitutional protections, as set out in Lawrence v. Texas, to private, secret, solitary masturbation with a child-sized sex doll. Spoiler alert: The Constitution Wins! We then provide some comments on changes to the Manual for Courts-Martial as a result of the 2025 National Defense Authorization Act and Executive Order 14,130.&n...
Send us a text In today's episode we discuss the recent Air Force Court of Criminal Appeals case of United States v. Doroteo, where the court discussed three important issues for defensive litigation: 1) liberal discovery rules applicable to military justice, 2) the awesome power of R.C.M. 914, and 3) the excited utterance exception to the prohibition against hearsay. The advocacy piece this week is just some thoughts on how to get sex offender registration under SORNA i...
Send us a text Happy Holidays! Today's episode discusses the recent CAAF case of United States v. Wells, where Airman Wells asserted that Clause 2 of Article 134 (acts made criminal where they act is of a nature to bring discredit upon the armed serves) is unconstitutionally void for vagueness. The CAAF found the Clause constitutional and re-iterated that the government is not required to prove that anyone knew of the conduct or that it actually impacted any person's opinion of th...
Send us a text Today we discuss a NMCCA case that dismisses an illegal drug use charge under Article 112a, UCMJ, for being factually insufficient. The case provides a great vehicle for discussing the permissive inference instruction and how defenders should push back against its use when there is no actual evidence that would make the inference reasonable. We then hear from Captain Brusik on the Novel Offenses Doctrine, which is closely related to the pre-emption doctrine for Arti...
Send us a text This week we discuss the case of United States v. Guihama, where the Court of Appeals for the Armed Forces revisits the issue of the quantum of evidence required to corroborate a confession before the confession can be admitted in evidence (spoiler alert - not much). We then hear from Lt Col Tony Ghiotto who returns with weaponizing the rules of evidence and narrows in on character evidence.
Send us a text [Revised] In this week's episode we discuss United States v. Flanner; an opinion from the Court of Appeals for the Armed Forces that walks back CAAF's earlier proclamation that the right to counsel attaches earlier in military justice than it does under the Fifth Amendment. We then hear from Major Ciara Ryan on how to effectively communicate with and prepare your client while still maintaining professional distancing so as to preserve your own well being.
Comments
Download from Google Play
Download from App Store
United States