Articles Posted in Worth the Read

“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., 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.

Martin Yant, Rogue prosecutor’s influence on hair expert’s testimony highlighted in ruling overturning conviction.  Wrongful Convictions Blog, January 27, 2016.  You can read the court decision here.

If, is a poem by Rudyard Kipling, which immediately sprang to mind when reading the above article.

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.

West was found not guilty of the majority of charges arising out of the alleged sexual assault and harassment directed towards Parrott, Harper, and Rieth.[6] He was found guilty of a subset of charges based on (1) certain sexually suggestive comments made to Allen[7] and (2) obstructing justice by conspiring with another Marine to provide Allen with copies of their text messages in an attempt to influence her testimony.[8] West alleges that as he was being escorted to serve a sentence of thirty days in confinement as a result of his convictions, “defendants Rieth, Parrott, and Allen, spit upon” him.

It’s a scope of employment and immunity case.

Is a complaining witness acting within the scope of employment when making a sexual assault or harassment complaint?

Is a complaining witness acting within the scope of employment when making a false sexual assault or harassment complaint?

First we look to state law because “Judicial review of the scope-of-employment certification “requires the application of the law of the state in which the employee’s conduct occurred.” Williams, 71 F.3d at 505.”

According to the government, the Federal Defendants, as employees of the Marine Corps, “were required to take the actions necessary to report and address any issue of sexual harassment and/or sexual assault with the appropriate United States Marine Corps officials.”[14] The government also argues that the U.S. Attorney’s certification “was appropriate because a determination had been made by the appropriate federal officials that there was enough credible evidence that the named Federal Defendants were the victims of workplace sexual harassment and/or sexual assault to refer charges to the General Court Martial.”[15] The implicit premise of the government’s argument in support of the scope-of-employment certification is that the Federal Defendants had a legitimate basis for reporting that West sexually assaulted and/or sexually harassed them and then testifying to those allegations at the subsequent court-martial.

The government is plainly correct that reporting sexual harassment and/or sexual assault by another Marine is within the reporting Marine’s course and scope of employment. Both parties have submitted Department of Defense documentation regarding the programs established to facilitate the reporting of such allegations, which documentation establishes that the military’s “goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability . . ., victim support, reporting procedures, and appropriate accountability.”[16] West concedes that “sexual assault on a service member is disruptive and destructive to the military and violates its core values in a fundamental way.”[17]

The Court agrees that reporting sexual assault and/or sexual harassment would plainly be “primarily employment rooted” and “reasonably incidental to the performance of the employee’s duties.” See White, 419 F. App’x at 442. Likewise, use of a system expressly created by the Marine Corps to receive and handle such complaints is sufficiently “on the employer’s premises” and “during the hours of employment” to satisfy those factors, as would be testimony by a Marine at a court-martial instigated by such reports.

However, West alleges that the underlying allegations against him were fabricated, and that making false reports of sexual assault and testifying falsely as to those allegations cannot be characterized as within the scope of the employment of a U.S. Marine Corps service member.[18] West forcefully argues that completely false allegations made by one Marine against another solely on the basis of a personal vendetta and for personal gain would not be “reasonably incidental to the performance of the employee’s duties,” nor could such statements have “the purpose of serving the master’s business . . . to any appreciable extent.” Id.[19]

This case is an excellent read, especially for those of us considering whether they have the right case to sue a complaining witness who makes a false claim of sexual assault or harassment.  Such cases are not to be lightly pursued and require a significant degree of proof of falsity.  The need for a very thorough package of proof is illustrated in this case.

The Court concludes that West’s evidence consists of factual nitpicking, his personal “spin” on facts which equally tend to suggest that some of the allegations were well-founded, and secondhand credibility determinations. His submission falls well short of carrying his burden to establish as a factual matter that the allegations lodged against him by the Federal Defendants were false[.]

Bottom line, and I think correctly, you are not going to win a civil suit in a she said-he said case or the ubiquitous drunk sex case.



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).


In R. v. Ewanchuk, the Supreme Court of Canada held that sexual touching must be accompanied by express, contemporaneous consent. In doing so, the Court rejected the idea that sexual consent could be “implied.” Ewanchuk was a landmark ruling, reflecting a powerful commitment to women’s equality and sexual autonomy. In articulating limits on the circumstances under which women can be said to “consent” to sexual touching, however, the decision also restricts their autonomy – specifically, by denying them a voice in determining the norms that should govern their intimate relationships and sexual lives. In Implied Consent and Sexual Assault, I argue that women should have the autonomy to decide whether, and under what circumstances, sexual touching can be appropriate in the absence of express consent. Though caution should be exercised before resurrecting a limited doctrine of implied consent, there are reasons to think that sexual assault law could accommodate a doctrine without undermining the sexual autonomy or equality rights of women. In reaching this conclusion, I challenge widespread beliefs about autonomy, consent, and the objectives underpinning the offence of sexual assault in Canada. Drawing upon a range of contemporary criminal law theorists and feminist scholars, I reconsider the nature of mutuality in a world dominated by gender norms, the proper scope of criminal law, and the meaning of sexual autonomy.

Note: A brief excerpt from the Introduction to my forthcoming book, Implied Consent and Sexual Assault, reproduced with the kind permission of McGill-Queen’s University Press.

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.

Our interviews with more than 200 state prosecutors call into question the basis for this asserted correlation between prosecutorial experience and risk of misconduct. The prosecutors we met consistently reported that, all else equal, prosecutors tend to become more balanced, rather than more adversarial, over time. Hence, the prosecutors who present the greatest risk of producing a wrongful conviction are those who are either inexperienced or resistant to the normal maturation process. For this reason, we suggest that wrongful conviction researchers and database designers pay closer attention to the variables associated with prosecutorial experience and resistance that might affect the development of prosecutorial maturity and the consequent risk of wrongful convictions.

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.

So, a lengthy introduction to a scholarly piece worth the read.  You can access, Yager, Reggie D., What’s Missing from Sexual Assault Prevention and Response (April 22, 2015). Available at SSRN:  It appears the author is an Air Force judge advocate and the manuscript is a work in progress.

This article examines the sexual assault prevention and response (SAPR) policy in the military over the last few years. Although focused primarily on the military policy, most of the concerns addressed in this article are equally applicable to how colleges and universities are dealing with SAPR. The article argues that civilian and military leadership have neglected to protect the wrongly accused. There are three sections to this article. The first section explains why we should be concerned about the wrongly accused, using examples of wrongful convictions, false accusations, the reasons they occur, and some research about the frequency of the problem. The next section discusses why we have not done so, demonstrates that false accusations are not rare, and exposes the significant flaws with the research that is driving our unbalanced policy. The last section identifies specific flaws with policy, the justice process, and with SAPR training and offers recommendations for how we can improve prevention and response while simultaneously protecting both victims and the wrongly accused.

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—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

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

(2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

The first question is of more interest than the second.  Military practice on motions waivable or otherwise is different from federal courts.  Essentially there is a circuit split where two circuits hold the government’s feet to the fire to prove additional “elements” instructed on, but not required by statute, with two circuits reviewing legal sufficiency based only on the statutory elements regardless of the court’s instructions.

The ever helpful SCOTUSBlog has previously commented on the case.

[W]hen the jury was ultimately instructed, the judge mistakenly told them that the statute “makes it a crime for a person to intentionally access a protected computer without authorization and” – not “or,” as the statute and the government’s proffered instructions actually said – “exceed authorization.”

The jury convict[ed].  [A]fter a motion for new trial was denied [it was] notice[d] the “and” versus “or” error in the instructions. [The Apppellant of course then sought to argue for dismissal.]  The trial court rejected that belated argument, as did the court of appeals, ruling that the statute and the indictment express all the elements the government must prove, and that the mistaken injection of an additional element was both irrelevant and harmless here.  Indeed, it redounded to Musacchio’s benefit at trial, by adding to the government’s burden of proof (as Justice Ruth Bader Ginsburg also noted during yesterday’s oral argument).

Mr. Little impliedly predicts Mussachio loses because he does “not perceive any support for Musacchio’s arguments in the transcript of oral argument. Rather, there were repeated expressions of non-understanding or outright rejection.”







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.