U.S. v. Shelby, 85 M.J. 292

Military Justice Personnel: Military Judge: General Powers

1. a military judge has the authority to consider the totality of the circumstances in selecting a remedy to preserve the accused's right to a fair trial

Military Justice Personnel: Military Judge: Discretion

1. an abuse of discretion occurs when the military judge: (1) bases a ruling on findings of fact that are not supported by the evidence; (2) uses incorrect legal principles; (3) applies correct legal principles in a clearly unreasonable way; or (4) does not consider important facts
2. in this case, the military judge abused his discretion in dismissing a charge pretrial with prejudice for two reasons: (1) the military judge did not identify how the taint of UCI in the previous court-martial carried into the present court-martial, particularly in light of the fact that the military judge already had disqualified the initial trial counsel and the initial convening authority, and already had dismissed the charge and its specification without prejudice; and (2) the military judge remedied any interference with appellant's right to counsel of choice by ordering the officer chosen by appellant to serve as appellant's IMC, resetting the case management deadlines to accommodate that counsel's belated appointment, and allowing that counsel to supplement any pleadings already filed; as such, because less drastic alternatives remedied the concerns raised by the military judge, his decision to dismiss the charge and specification with prejudice constituted an abuse of discretion
3. in this case, where the military judge dismissed a charge before trial with prejudice pursuant to the cumulative error doctrine, the military judge abused his discretion because the cumulative error doctrine does not apply pretrial

Trial Stages: Writs and Interlocutory Appeals: Article 62 Appeal

1. in an Article 62, UCMJ, appeal, the CAAF reviews the military judge's decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. in an Article 62, UCMJ, appeal, the CAAF reviews the military judge's decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial

Trial Stages: Appeals: Cumulative Error

1. the cumulative error doctrine is a prejudice test that looks retrospectively at a trial's execution and results to assess the cumulative effect of all plain errors and preserved errors; under the doctrine, appellate courts determine if a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding; and an appellate court will reverse only if it finds the cumulative errors denied the appellant a fair trial
2. the cumulative error doctrine does not apply in the pretrial context as the cumulative error doctrine is a prejudice test that looks retrospectively at a court-martial's execution and results to assess the cumulative effect of all plain errors and preserved errors

Trial Stages: Appeals: Remedies › Generally

1. dismissal is a drastic remedy and courts must look to see whether alternative remedies are available
2. when an error can be rendered harmless, dismissal is not an appropriate remedy

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge's ruling to dismiss a charge and its specification for an abuse of discretion; and abuse of discretion occurs when the military judge: (1) bases a ruling on findings of fact that are not supported by the evidence; (2) uses incorrect legal principles; (3) applies correct legal principles in a clearly unreasonable way; or (4) does not consider important facts
2. in an Article 62, UCMJ, appeal, the CAAF reviews the military judge's decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial
3. under the cumulative error doctrine, appellate courts determine if a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding; and an appellate court will reverse only if it finds the cumulative errors denied the appellant a fair trial