Articles Posted in Worth the Read

A couple of items have come across the transom today which are worth the read to military practitioners.

James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, Fed. Sentencing Rep. Dec. 2014, at 72-87.  This items comes from the current Chief Judge, the Court of Appeals for the Armed Forces.  His term of office will expire shortly, but the name of a new judge is not yet published.  By tradition, the next senior judge will fleet up to become the chief judge.


Col Robert F. Holland, USA, JA (Ret), Unique Procedural Aspects of Court-Martial Sentencing by Jury (sic), 27 Fed. Sentencing Rep., No. 2, Dec. 2014.

Military law and practice requires that any pretrial agreement discussions be conducted between the defense, the prosecutors, and the convening authority.  The military judge is not allowed to be involved.  The military judge’s involvement is during trial when she reviews a PTA with the accused to ensure it is all transparent and that it’s terms do not offend law or significant policy considerations.  Historically, courts have been reluctant to permit agreements to incorporate terms that deprive an accused of basic fundamental rights. See e.g., United States v. Callahan, 22 C.M.R. 443 (A.B.R. 1956); United States v. Cummings, 38 C.M.R. 174, 177 (C.M.A. 1968); and United States v. Schmeltz, 1 M.J. 8 (C.M.A. 1975).  R.C.M. 705 specifically lists examples of permissible and impermissible terms in a pretrial agreement.

  • The Court of Military Appeals in United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982) opened the door to non-traditional bargained for PTA provisions when it expressly acknowledged a judicial willingness to accept more complex PTAs, especially when the proposed term is proposed by the accused and his defense counsel.  For some odd terms the courts don’t like:
  • An agreement providing for a reduction of the accomplice’s confinement sentence by one year for each occasion that the accomplice testified against his co-accused. The court in United States v. Scoles, 33 C.M.R. 226, 232 (C.M.A. 1963) held that the agreement “offered an almost irresistible temptation to a confessedly guilty party to testify falsely in order to escape the adjudged consequences of his own misconduct.”
  • In United States v. Spriggs, 40 M.J. 158, 162 (C.M.A. 1994), the PTA provided for a suspension of confinement and punitive discharge until such time as appellant completed a sexual offender program at his own expense. Appellant experienced financial difficulties resulting from his non-pay status and was not able to complete the program. Consequently, the CA vacated his suspension and the appellant was placed in confinement. The court held the term to be fundamentally unfair as it was an “unreasonably long” period of time for the appellant to comply with the offenders program and follow-up.
  • See United States v. Dawson, 51 M.J. 411 (C.A.A.F.1999) and United states v. Pilkington, 51 M.J. 415 (C.A.A.F. 1999). Both cases stand for the proposition that post-trial agreements will be affirmed if the new agreement was entered into voluntarily and knowingly by the accused. However, it is imperative that post-trial agreements be reached at arms-length.

Now along comes one of my favorite evidence Prof’s – Colin Miller.  Recently, the New York Times published, “Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty.”

Prof Miller observes: “I can’t say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it’s the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).”

A New York federal judge, Jed Rakoff, has proposed one reform: plea-bargaining conferences. In sealed proceedings, judges would examine each party’s position and recommend a nonbinding plea bargain. The plan needs to be refined . . .

The point under discussion is Judge Rakoff’s piece, “Why Innocent People Plead Guilty,” from The New York Review ofBooks, November 2014.  Here’s the nub of the argument.

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. . . . [U]nlike the criminal plea bargain situation, there is no legal impediment to doing so [in civil cases]. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.

As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.



“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012).  Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week.  I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity.  Without going in to all of the facts, here are a few I thought relevant.

The CW had dropped her phone in the bath tub and it was no longer available for forensic examination.  In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in.  I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.

  • As usual CID never took a forensic copy of the cellphone.
  • There were some discrepancies with other information.

The nature of my approach was initiated from a number of worth-the-read pieces.

“Because social media is often stored on remote servers, is accessed through unique interfaces, can be dynamic and collaborative in nature, and is uniquely susceptible to alteration and fabrication, evidentiary standards developed for other types of electronically stored information [ESI] may not be adequate.”

H. Christopher Boehning & Daniel J. Toal, Authenticating Social Media Evidence, N.Y.L.J., Oct. 2, 2012, at para. 4.

See also, Colin Miller & Charles White, The Social Medium: Why the Authentication Bar Should be Raised For Social Media Evidence. 87 TEMPLE L. REV. (ONLINE) 1 (2014).

Laird C. Kirkpatrick, § 9:9 Authenticating email, social media, web pages, text messages, instant messaging, electronic signatures.  GW Law School Public Law and Legal Theory Paper No. 2014-60.

In addition to the case law and the facts, I also introduced into evidence four (of about nine) applications that can be downloaded to a cellphone or tablet and from which you can fake or alter a text message are stream of texts.  In another case I had also presented evidence of similar apps to create fake emails from you.  Here is just one – iphonefaketext

The need for authentication arises in this context because an electronic communication, such as a Facebook message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged in to their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. See, e.g., Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162 (2010).

State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011).

In Founding Myths: Stories That Hide Our Patriotic Past, by Ray Raphael, one of his issues of inaccurate historical reporting is about Paul Revere.  The book is incisive, well-written, and well worth the read.

So it is in this context that I mention Michael Greenberg’s, The Court-Martial of Paul Revere: A Son of Liberty and America’s Forgotten Military Disaster, published in late 2014.

Lieutenant Colonel Revere defended himself against accusations of dereliction and disobedience.  At trial he “confessed that he had initially disobeyed an order to deliver a barge to the general in charge, but once he remembered that General Wadsworth was his leader, he delivered the barge.” The disobedience sounds more serious – “On the question of leaving the area without orders to do so, Revere testified that there was such a state of confusion he shouldn’t have been expected to do otherwise.”  Revere was found not guilty.  From then began a long public relations campaign to restore his reputation – something accomplished by the time of his death in 1818 apparently.

The claim is made that Henry Wadsworth Longfellow’s poem, “Paul Revere’s Ride,” published in 1861, gave Revere immortality.  Something Ray Raphael takes on.

The Boston Globe book section has a post on the court-martial.

“Adolescents, more than adults, tend to discount the future and to afford greater weight to the short-term consequences of decisions.”

Kim Taylor-Thompson, States of Mind/States of Development, 14 STAN. L. & POL’Y REV. 143, 154 (2003).

How often do I think of this principle (cited to in The Virginia Lawyer, and United States v. Berry), when a client wants to upgrade their discharge.

I came across a piece entitled, “We Love the Pentagon’s ‘Encylopedia of Ethical Failure’” which is on

The piece notes what we have all seen that the last few years have seen many ethical challenges for the military.  Likely we know more about the specific cases because of The Internet and Google.

Individually, the cases are all bad news. The good news is that authorities often catch and punish government cheats, thieves and frauds. Penalties for ripping off the American taxpayer range from huge fines to hard time in prison.

The piece links to and has excerpts from the Encyclopedia, with a comment that, “It might be the most light-hearted official report anyone’s ever written about criminals.”

The encyclopedia is put out by the DoD Standards of Conduct Office as a learning and teaching tool.  For us, it is both interesting and entertaining to read, but it some ways a research tool for comparison purposes, “According to the Standards of Conduct official I spoke with, the encyclopedia has been a great success. Other government agencies even like it. “They like the realistic examples,” he said. “It also helps address the concern that people hear about complaints … but they don’t often hear the final result.”

It’s true—one particularly useful aspect of The Encyclopedia of Ethical Failure is its description of perpetrators’ punishments.

The Encyclopedia of Ethical Failures is approaching 200 pages. Two-hundred aggravating and amusing pages. The office most recently updated the book in October. The big update usually comes in July.

You might take a look if you need to lighten the day.

Professor Schlueter takes a stab at answering the question.

David A. Schlueter, The Military Justice Conundrum: Justice or Discipline?, 215 MIL. L. REV.  1 (2013).

Why even ask the question let alone seek an answer.  Well it depends on where you stand on the current issue of a commander’s authority over courts-martials.  If you want to maintain the current system you have to counter those who argue for change.  If you want change you have to convince commanders their ability to pursue the mission will not be compromised because of an inability to maintain discipline.

Check it out.

Each week CrimProfBlog publishes the top ten downloaded articles.  Here are three that may be useful to military justice practitioners.

Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team
Jonathan Abel, Stanford Law School – Constitutional Law Center

The Supreme Court’s Brady doctrine requires prosecutors to disclose favorable, material evidence to the defense, but in some jurisdictions, even well-meaning prosecutors cannot carry out this obligation when it comes to one critical area of evidence: police personnel files. These files contain valuable evidence of police misconduct that can be used to attack an officer’s credibility on the witness stand and can make the difference acquittal and conviction. But around the country, state statutes and local policies prevent prosecutors from accessing these files, much less disclosing the material they contain. And even where prosecutors can access the misconduct in these files, their ability to disclose this information, as required by the Constitution, is constrained by the efforts of police officers and unions who have used litigation, legislation, and informal political pressure to prevent Brady’s application to these files. Suppression of this misconduct evidence can cost defendants their lives, but disclosure can also be costly. It can cost officers their livelihoods.

Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a ‘Scientific Stare Decisis’
Christopher Slobogin, Vanderbilt University – Law School

Unbundling Criminal Trial RightsJohn Rappaport.

Your weekend reading program.

Many, many, many years ago, as a police officer I had attempted to arrest a suspect who successfully got away.  Some days later, I saw a CID officer bringing in a person to the station – and I said, “that’s him.”  It wasn’t, I was wrong.

My first general court-martial in 1980 was a contested double armed robbery.  We had extensive litigation over a classic “show-up” at the crime scene.  The client was restrained in a police car, the victim was brought over to look at him and identified him.  That hard fought motion was lost.  (I actually remember this case as my first “war story” in the defense trenches for other reasons – for example when the client gets in a fight with four chasers in front of the members.  My quickest not guilty finding was less than five minutes, this was my quickest guilty finding – less than 15 minutes.)

Over the last 34 years, I have had very few cases that hinge on a witness identifying the client as the person who committed the alleged offenses.  And when that has happened there have been sufficient other witnesses or evidence to corroborate the identification – like DNA.  So for the military practitioner, the new report of the National Research Council, National Academy of Sciences, called Identifying the Culprit: Assessing Eyewitness Identification (2014), is not likely to be relevant to your studies at first blush.

But that does not mean – here comes the double negative – that it’s not worth the read.  A news release of the Academy makes this statement, “Science has provided an increasingly clear picture of the inherent limits in human visual perception and memory that can lead to errors, as well as the ways unintentional cues during law enforcement processes can compromise eyewitness identifications, the report says.” The same variables that might affect an eyewitness ability to remember and identify a suspect also impact on their ability to remember and relate events of the alleged crimes.

  • Lighting.
  • Stress.
  • Alcohol.
  • Race.
  • Distractors.

As well as “unintentional cues during law enforcement processes.”

For more on how investigators can spoilate witness accounts, we should remember our lessons on the interviewing of children, a long standing issue and concern.  The same goes with unintentional witness spoliation through statement conformity.  For more worth the read items try these.

Gabbert, Fiona; Wright, Daniel B.; Memon, Amina; Skagerberg, Elin M.; and Jamieson, Kat, “Memory Conformity Between Eyewitnesses” (2012). Court Review: The Journal of the American Judges Association. Paper 382.

Anne M. Ridley, Fiona Gabbert, David J. La Rooy, Suggestibility in Legal Contexts: Psychological Research and Forensic Implications, (2013).

Helen M. Paterson, Richard I. Kemp and Joseph P. Forgas, Co-Witnesses, Confederates, and Conformity: Effects of Discussion and Delay on Eyewitness Memory, 16 Psychiatry, Psychology and Law, Supplement, 2009, S112–S124.

Each of these items may give you insight into your own sexual assault case which, because of alcohol, raises witness spoilation considerations.  And as the research appears to show, the “training” in sexual assaults being given may contribute not inform about spoliation in sexual assault witnesses.

 According to a recent study, people not only conform their opinions publicly to social pressure, but passive social pressure can also change peoples’ memories subconsciously.

Micah Edelson1, Tali Sharot Raymond J. Dolan, Yadin Dudai, Following the Crowd: Brain Substrates of Long-Term Memory Conformity, 333 Science, no. 6038 pp. 108-111 (1 July 2011).

screenshot-by-nimbus has published a symposium – articles related to military justice, specifically sexual assault cases.  Both sides will find something in the articles. Of particular interest are two articles:  Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. SeamoneSex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. SchenckInforming the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).