This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

We all laugh at TV shows and movies which we think of as fantasy.  The CSI shows, NCIS, JAG, among .  We ..get a laugh out of them.  But reality may make you cry.

Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice.  Boston Review, November 16, 2015.

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

. . .

In more than 95 percent of cases, analysts overstated their conclusions in a way that favored prosecutors. The false testimony occurred in hundreds of trials, including thirty-two death penalty cases. Not only that, but the FBI also acknowledged it had “trained hundreds of state hair examiners in annual two-week training courses,” implying that countless state convictions had also been procured using consistently defective techniques.

But questions of forensic science’s reliability go well beyond hair analysis, and the FBI’s blunders aren’t the only reason to wonder how often fantasy passes for science in courtrooms. Recent years have seen a wave of scandal, particularly in drug testing laboratories. In 2013 a Massachusetts drug lab technician pled guilty to falsifying tests affecting up to 40,000 convictions. Before that, at least nine other states had produced lab scandals. The crime lab in Detroit was so riddled with malpractice that in 2008 the city shut it down. During a 2014 trial in Delaware, a state trooper on the witness stand opened an evidence envelope from the drug lab supposedly containing sixty-four blue OxyContin pills, only to find thirteen pink blood-pressure pills. That embarrassing mishap led to a full investigation of the lab, which found evidence completely unsecured and subject to frequent tampering.

[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.

There are many problems with this opinion.

He notes that:

The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.

He notes then the general purpose behind evidence such as DNA results.

The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches.  The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401?  To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place.

Indeed, as the FBI itself states:

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Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault.  This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved.  If the recording is done with knowledge and consent, that probably is defensible.  But what if it isn’t.  Many states now have statutes prohibiting unknowing or nonconsensual recordings.  As does the federal government in 18 U.S.C. 2251(a).  Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

The accused was convicted of taking pictures during sex.  He asked for the federal equivalent of a Griffiths motion, which was denied.  On appeal the court found the judge erred and the charge should have been dismissed.  The court found insufficient evidence of intent to engage in sex for the purpose of making pictures.  In other words, if he’d decided to take pictures of sex and then arranged the sex and recorded the sex—and there was evidence of that intent—then he could be found guilty.  But, as the recording was incidental and there was no evidence of intent there could be no conviction.  It’s not exactly a chicken-and-the-egg problem, but seems close.

Palomino-Coronado contends that the government failed to prove one of the elements of § 2251(a)—namely, that he acted for the purpose of producing a visual depiction.

§ 2251(a) contains a specific intent element: the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.  a defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture.

Anyway.  If the accused is charged under UCMJ art. 134 for violating 18 U.S.C. 2251(a) or a similar statute, careful attention should be paid to Palimino-Coronado.  It is certainly not a slam-dunk, but there are arguments that can be made.

Naval Academy Professor Sues Navy Over Free Speech


This reports

A civilian professor at the U.S. Naval Academy is suing the Navy, accusing it of violating his First Amendment right to free speech and chilling academic freedom.

Attorneys for Bruce Fleming said Thursday that the professor was denied merit pay and $7,000 in summer funding based on a 2014 reprimand. It stemmed from a 2013 classroom discussion, when Fleming prompted his students to consider the academy’s sexual assault program and the potentially one-sided burdens it put on men, at a time when the academy was part of the national debate over how to stop sexual assault in the military.

Two female students disagreed with Fleming’s comments in class.

Fleming was cleared in an initial investigation. A second investigation by a more senior academy official led to the reprimand. It found the professor’s initiation of conduct cases against the two students amounted to retaliation.

The lawsuit disputes a finding by the academy that characterized the actions of the female midshipmen in complaining to sexual assault prevention officials as seeking guidance. Instead, the lawsuit alleges complaints lodged with the sexual assault prevention office “were made in bad faith and with the specific intent to have the academy censor and punish Professor Fleming for daring to criticize the (Sexual Assault Prevention and Response Program.)”

United States v. Dreyer.  A decision from the Ninth.

On issues arising from the Posse Comitatus Act (PCA), the en banc court affirmed the district court’s denial of a suppression motion, and remanded to the three-judge panel for consideration of remaining issues, in a case in which the defendant was convicted of one count of distributing child pornography and one count of possessing child pornography.

A special agent of the Naval Criminal Investigative Service (NCIS) conducted an investigation into computers in Washington state sharing child pornography by utilizing a software query that encompassed the entire state but did not isolate or look for military service members. The investigation revealed that the defendant, a civilian, had shared child pornography files, and the NCIS passed that information along to the local police department.

The en banc court reaffirmed the holding in United States v. Chon, 210 F.3d 990 (9th Cir. 2000), that the NCIS and its civilian agents are subject to PCA-like restrictions proscribing direct assistance to civilian law enforcement.  The en banc court held that the NCIS agent’s investigation violated PCA-like restrictions[.]

Today, 5 November 2015, the Court of Appeals for the Armed Forces granted our petition in United States v. Pinkela, reversed the findings for aggravated assault and reckless endangerment, and affirmed a lesser included offense of assault and battery.

United States v. Pinkela, ACCA — I.

U.S.C.A.A.F. — I.  This was a summary disposition with a remand to consider the case in light of United States v. Guitierrez.


Order in U.S.C.A.A.F. — II.  PINKELA 15-0747 ORDER 110415

The government filed its answer in Bergdahl v. Burke at CAAF today.

You may note on page 1,before getting to the merits.

  • It misidentifies the parties/
  • Mislabels the name of the pleading (Rule 19(e) calls for an “answer” not a “response”).
  • Misaddresses the document to the judges of the wrong court, but also (d) fails, contrary to the rules, to serve the amici.