Articles Posted in Worth the Read

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).

On occasion I note civilian court opinions that reference or rely on military appellate case law. In my view, because of technology we see more courts, especially federal courts, cite to military appellate case law. In United States v. Buchanan, the accused sought to prevent a guardian ad litem (GAL) from filing motions. The court denied the accused’s motion, and in the process cited to LRM v. Kastenberg, 72 M.J. 364, 358 (C.A.A.F. 2013).

Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial, Andrew S. Williams, Brigham Young University, June 5, 2013, 28 BYU Journal of Public Law (April 2014, Forthcoming)


“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military.

The court-martial panel is not a true jury. Federal juries in criminal cases must have twelve jurors and be unanimous. State juries must have at least six jurors, and five of six jurors voting to convict is not enough to satisfy the Sixth Amendment. Unlike federal and state juries, the panel that convicted the accused in the sex assault case discussed above had only five members and it did not have to be unanimous – only a two-thirds vote, or four out of five, was needed for a conviction. No five-member panel, unanimous or not, is a jury. Because the panel was not a true jury, the panel’s verdict will not always resemble the commonsense judgment of a jury. The Supreme Court made clear that court-martial panels are not juries.

Because a court-martial panel is not a true jury, the commander should retain the authority to review its findings for this reason alone. The commander’s authority to review the findings is actually a safeguard against the court-martial panel’s verdict, which is sometimes not supported by the evidence.

Part I introduces the right to trial by jury as the key to liberty in the American scheme of justice. It also explains why the Founding Fathers denied military members this right along with all other protections of the Bill of Rights. Part II discusses the historical foundations of the court-martial and why the military justice system developed separately from the civilian justice system. The court-martial was and still is, first and foremost, a tool of discipline and not a court of law.

Part III describes the essential differences between panels and juries and why those differences materially affect the reliability of verdicts. Part IV discusses the safeguards enacted by Congress to make up for the panel’s structural flaws. These safeguards are as unorthodox to the American scheme of justice as they are now controversial. They should not be eliminated unless the panel’s structural flaws are also corrected. Part V contains recommendations for amending the Uniform Code of Military Justice, to include a return to the original understanding that courts-martial should be limited in times of peace to disciplinary infractions.

If the commander’s role seems antiquated today, so, too, is the denial of genuine due process to the men and women who serve in the U.S. Armed Forces.


Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing

Mark W. Bennett

U.S. District Court (Northern District of Iowa)

Ira P. Robbins

American University – Washington College of Law

March 10, 2014

Alabama Law Review, Vol. 65, No. 3, 2014
American University, WCL Research Paper No. 2014-9 

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible. Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.


SCOTUSBlog has this of potential interest.

The petition of the day is:

New Mexico v. Herring

Issue:  Whether Berghuis v. Thompkins requires advice that a suspect has the right to stop talking at any time in order to establish an implied waiver of Miranda rights.

This case illustrates, again if anything did, the value of video and audio recorded interrogations.  Oooops.  I meant suspect interviews.  Interrogation is of course a loaded word, so investigators are cautioned to use the less accusatory and loaded terminology.  Just more of the psychology of getting confessions.

For those interested in the history of the Constitution and its judicial interpretation, the George Washington Law Review has a:


edition.  Volume 80, No. 5, includes:

A Dialogue on Statutory and Constitutional Interpretation
The Honorable Antonin Scalia & John F. Manning
80 GEO. WASH. L. REV. 1610 (2012)


A Dialogue with Federal Judges on the Role of History in Interpretation
Amanda L. Tyler, Moderator, The Honorable Frank H. Easterbrook, The Honorable Brett M. Kavanaugh, The Honorable Charles F. Lettow, The Honorable Reena Raggi, The Honorable Jeffrey S. Sutton & The Honorable Diane P. Wood
80 GEO. WASH. L. REV. 1889 (2012)

h/t to Prof. Berman TG.

The title of this post is the headline of this new New York Times segment of its series "Room for Debate."  The NY Timesbrought together five leading lights to comment on this question (all of whom appear to supply variations on the answer "Yes").  Here is how the segment sets up the debate, followed by links to the must-read pieces that provide five different answers to the question:

A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.)

Legal observers — including the editorial board of The New York Times — focused on the judge’s concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power.  When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?

The Inspector Rutledge detective stories are a favorite of mine.  To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

As defense counsel we all need a Hamish (not one we have killed of course).  Sentencing is often the time in a trial when the ability to put as much favorable influential evidence or information before the fact-finder is at its apogee.  That’s a good thing because the actual fundamental purpose of sentencing is – to parse the rules, “to mete out an appropriate sentence for this offender and offenses.”  For some reason that’s why it struck me that United States v. Takara, ACM S31832 (A.F. Ct. Crim. App. 13 July 2012)(unpub.), is worth the read.

James Gow, War and War Crimes:  Military, Legitimacy and Success in Armed Conflict, Coumbia Univ. Press, Dec. 2011.

Necessity and proportionality inform the laws of war, but how do these principles work in modern warfare? What new pressures do the practitioners of war face, especially in light of rapid changes in strategy and policy and an increasing emphasis on ethics and legality?
Wars waged in fluctuating environments make the legitimacy of armed force hard to justify, especially among diverse international and transnational publics. More than ever, strategy has come to embrace justice and law as crucial components of military success, but legitimacy is fragile and easily contested, and today’s militaries struggle to respond positively, consistently , and legally to an ever-shifting dynamic. Drawing on empirical research and interviews with seasoned military professionals, this volume describes how militaries can work successfully within the politics-law-strategy nexus to foster and maintain a sense of legitimacy in war. James Gow clearly defines the mutual relationship between wars and their outcomes, pinpointing the moment when a war act becomes a war crime, especially within multidimensional combat. Taking an initial, bold step in reconciling a troubling and taboo issue, Gow provides strategists, policymakers, and others with a framework for mitigating negative outcomes.