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.

From Prof. Doug Berman’s excellent Sentencing Law & Policy.

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.

A couple of interesting items from John Wesley Hall’s excellent Fourth Amendment blog.

Without something to go on, the court declines to ascribe a supposed error in an address as a mere typo. Moreover, the affidavit fails to provide any nexus to defendant and the place to be searched, and the good faith exception is inapplicable. The court even finds the issuing judge failed to perform his or her judicial function in evaluating the affidavit. Andrews v. District of Columbia, 2019 D.C. App. LEXIS 336 (Aug. 15, 2019):

(1) The probable cause here was thin, and it was based on a CI’s credibility. The officer omitted important information to the CI’s credibility. This entitles him to at least a Franks hearing on remand. (2) A photograph of the motel room during the search shows the time as 25 minutes before the search warrant was issued. Whether the motel room clock was correct or not is a matter of speculation in light of the testimony, which the court credits instead. [What person has stayed in a hotel room where the clock was always correct? Nobody.] United States v. Clark, 2019 U.S. App. LEXIS 24332 (7th Cir. Aug. 15, 2019).

Rossmo, Kim and Pollock, Joycelyn, Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective (June 28, 2019). Northeastern University Law Review, Vol. 11, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3413922.

Tokson, Matthew J., The Emerging Principles of Fourth Amendment Privacy (July 23, 2019). George Washington Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3425321

Wexler, Rebecca, Evidence in the Age of Privacy: Access to Data in the Criminal Justice System (July 29, 2019). Available at SSRN: https://ssrn.com/abstract=3428607 or http://dx.doi.org/10.2139/ssrn.3428607

 

Going through some old files I came across the

Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).

Should the TJAGs also send a “letter to self?”

 

Here is something from good friend Don Rehkopf as a reminder to defense counsel.
1)   For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or
2)   Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD;

Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective,

By D. Kim Rossmo and Joycelyn M. Pollock.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Once again it is the duty of the defense counsel to police the prosecutors not for the prosecutors to police themselves. That is one of the conclusions from the new decision—United States v. Voorhees,

https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf,

just decided by the U. S. Court of Appeals for the Armed Forces.

Maybe this guy–AF Captain Josh Traeger (and his leadership) aren’t so great? Will the AF allow him to remain in trial counsel duties?

As trial counsel tried to establish his bona fides with the court members during voir dire, he introduced himself as an attorney of considerable experience and gravitas:

I’m Captain Josh Traeger. I’m a senior trial counsel assigned to Peterson Air Force Base. In that capacity I travel around the world, between 200 and 250 days a year, prosecuting the Air Force’s most serious cases.

Military prisoners may go on MSRP at their MRD unless going into parole. There are many conditions and some consequences for failure to follow the rules. With that in mind, we may need to pay attention and give some thought to:

United States v. Haymond, decided today (26 June 2019) by the Supremes. The opinion is written by Gorsuch. (I’ve linked to SCOTUSBlog so you can the briefs and the opinion.

Some early comment from Prof. Doug Berman — here.