U.S. v. Thompkins, 58 M.J. 43

Core Criminal Law Subjects: Crimes: Article 90 - Assaulting or Willfully Disobeying Superior Commissioned Officer Pre-2019 offenses

1. a service member who, contrary to the terms of a no-contact order, initiates contact is subject to punishment under either Article 90 or Article 92, UCMJ, without the necessity of proof that the contact was undertaken for an improper purpose
2. public policy supports a strict reading of a no-contact order; a military commander who has a legitimate interest in deterring contact between a service member and another person is not required to sort through every contact to determine, after the fact, whether there was a nefarious purpose

Trial Stages: Merits: Mistrial

1. relief for a military judge’s failure to grant a mistrial is available only upon clear evidence of abuse of discretion
2. the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor; courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness
3. a mistrial is a drastic remedy to be used only sparingly to prevent manifest injustice; it is appropriate only whenever circumstances arise that cast substantial doubt upon the fairness or impartiality of the trial
4. in ruling on a mistrial motion, the military judge should examine the timing of the incident, the identity of the factfinder, the reasons for a mistrial, and potential alternative remedies; most importantly, the military judge should consider the desires of and the impact on the defendant
5. a military judge's timely remedial actions, such as giving curative instructions, may prevent the manifest injustice that would necessitate a mistrial