Articles Posted in Worth the Read

Practitioners of military justice have been dealing with change over the last years due primarily to different approaches to sexual assault cases.  Friend and colleague Cully Stimson has a published piece from his and his organization’s perspective.  Take a look.

The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

· Police can tell when a suspect is lying
· People confess only when they have actually committed the crime they are being charged with
· Most judges and jurors fully understand court instructions
· Eye-witnesses are always the most reliable source of case-related information
· Most mentally ill individuals are violent
· All psychopaths are criminals
· We need to be ‘tough on crime’ by giving convicted felons harsher punishments
· The death sentence is an effective way to deter criminal activity
· Excitement improves memory

What do you think the right answer is to the above statements.  Have a go before you — read on for the point. Continue reading →

“If we prioritize conviction rates rather than having just verdicts, and if we vote that way in elections, this problem [of unfair, biased criminal prosecutions] will just continue.”

by Todd VanDerWerff on January 11, 2016, Netflix’s Making a Murderer: the directors explain what many have missed about the series.  Vox.com, January 11, 2016.

Prosecutorial bias permeates the American judicial system. Prosecutors hell-bent on victory often directly or indirectly prod investigators and experts to get the results they want. It’s refreshing to see a judge recognize this in a well-reasoned, groundbreaking decision.

The interesting case of West v. Rieth, et. al. has come across the transom and it’s worth the read.

West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.[4]

At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false.

One of the discussions ongoing about military sexual assault cases is the breadth of conduct meant to capture, and potential ambiguities in how the law seeks to define a crime versus boorish or otherwise inappropriate behavior.  Here is an interesting piece based on developments in Canada.

Implied Consent & Sexual Assault: Introduction, Michael Plaxton, University of Saskatchewan – College of Law, November 27, 2015

Introductory Excerpt from Implied Consent and Sexual Assault: Sexual Autonomy, Intimate Relationships, and Voice (McGill-Queen’s University Press, 2015) (Forthcoming).

There has been much talk in the military justice community about prosecutor ethics and how they may clash with the commander and Congressional desires to prosecute and convict those accused of sexual assault.  It is difficult to decide if pressure (proper or otherwise) leads prosecutors to err, or whether it is inexperience or just a desire to improve their scoreboard.  The authors below touch on an interesting view of how prosecutors are “involved” in wrongful convictions.

Kay L. Levine and Ronald F. Wright (Emory University School of Law and Wake Forest University – School of Law) have posted Prosecutor Risk, Maturation, and Wrongful Conviction Practice (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:

In this article we rethink the connection between prosecutorial experience and conviction psychology that undergirds much of the academic literature about wrongful convictions. The conviction psychology account of prosecutorial behavior asserts that prosecutorial susceptibility to cognitive biases deepens over time, thereby increasing the risk that prosecutors will become involved in wrongful convictions the longer they stay in the profession.

Kyndra C. Cleveland , Jodi Quas and Thomas D. Lyon (University of California, Irvine , University of California, Irvine – Department of Criminology, Law and Society and University of Southern California – Gould School of Law) have posted Valence, Implicated Actor, and Children’s Acquiescence to False Suggestions (Forthcoming, Journal of Applied Developmental Psychology) on SSRN. Here is the abstract:

Although adverse effects of suggestive interviewing on children’s accuracy are well documented, it remains unclear as to whether these effects vary depending on the valence of and the actor implicated in suggestions. In this study, 124 3-8-year-olds participated in a classroom activity and were later questioned about positive and negative false details. The interviewer provided positive reinforcement when children acquiesced to suggestions and negative feedback when they did not. Following reinforcement or feedback, young children were comparably suggestible for positive and negative details. With age, resistance to suggestions about negative details emerged first, followed by resistance to suggestions about positive details. Across age, more negative feedback was required to induce acquiescence to negative than positive false details. Finally, children were less willing to acquiesce when they (versus the confederate) were implicated. Findings highlight the interactive effects of valence and children’s age on their eyewitness performance in suggestive contexts.

We are all familiar of Congressional and command efforts to address military sexual assaults.  Many of the revisions to the UCMJ and the MCM flowing from these efforts are appropriate, reasonable, or meaningless.

However, what does appear consistent is the failure of Congress to recognize that it has a concomitant duty to the accused to ensure that his trial is fair both in procedure and substance.  Unlike the congressional committees on the judiciary, the committees on the armed services have a more direct and at times intrusive influence on the military judicial system once enacted.  For example, the controls the Congress has on United States Attorneys (USA) and federal judges are much more limited than the direct and palpable influence of Congress on the commanders, prosecutors, and judges in the military justice system.  We are all aware of the perceptional punitive actions taken against two senior Air Force commanders for decisions in sexual assault cases, the results of which certain members of Congress disliked.  This is because military participants in the military  justice system are subject to Congressional control over their promotions and in some cases their duty assignments.  Not so the USA.

The concern, of course, is the potential for false accusations of sexual assault and congressional hands-on interference in an effort to prejudge and require convictions regardless of the complaints merit.  That may seem to be hyperbole on my part, but that is very clearly my perception and the perception of many others who are involved in the system on a daily basis. I have said before that the failure to address the potential for false accusations harms actual victims, the accused, the accused’s wife, the accused’s children, and military unit morale.

The Washington Post has an article by Orin Kerr on a report in the New York Times about a bill introduced in Congress to change or clarify the “mens rea” required in federal criminal statutes.  I probably should not comment on where the proposal may have come from. It is proposed that:

§ 11. Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.

There are two questions presented.

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and