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The Army has announced servicewide and command-specific changes in the wake of a scathing independent report last year that called for a major overhaul of both its Criminal Investigation Command and its Sexual Harassment/Assault Response and Prevention Program, reports Army Times.

The changes include the following, according to an Army statement:

Army-wide

Until now, a person wishing to upgrade their discharge would file a petition with the Service discharge review board. Beginning April 2021, the Department of Defense has established a new and final board of appeal, called the Discharge Appeal Review Board.

The new Discharge Appeal Review Board will allow those service members a final review of their requests to upgrade their discharge or dismissal characterization after they have exhausted all other available administrative options, the Defense Department’s release said. Congress ordered the board created in the fiscal 2020 National Defense Authorization Act.

Air Force

Another item from Prof. Colin Miller

Professor Katie Kronick (American University Washington College of Law) has posted “Forensic Science and the Judicial Conformity Problem” (Seton Hall Law Review, forthcoming) on SSRN. Here is the abstract:

Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports reveals that many areas of forensic science are not only vulnerable to human error, but also lack scientific or evidentiary support for the conclusions they purport to reach. This includes fingerprint analysis, firearm and toolmark examination, bitemark comparison, and hair microscopy. Yet judges continue to admit this expert testimony in criminal cases ranging from homicide to firearm possession to sexual assault without the critical analysis one might expect given the now well-identified problems and the stakes at hand.

Prof. Miller brings us this.

Federal Rule of Evidence 609(b) states the following:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

United States v. Pearson, 80 M.J. ___ (N-M Ct. Crim. App. 2021).

Sentence adjudged 25 July 2019 by a general court-martial convened at Marine Corps Air Station Yuma, Arizona, consisting of officer and enlisted members. Sentence in the Entry of Judgment: confinement for eight months and a duck dinner.

Appellant asserts four assignments of error [AOEs]:1 (1) this Court lacks jurisdiction to act on the findings and sentence because the convening authority took “no action” on the sentence;2 (2) the military judge erred in failing to suppress Appellant’s statements to a civilian law enforcement officer and his subsequent statements to the NCIS; (3) the evidence is legally and factually insufficient to sustain a conviction for receiving, viewing, and possessing child pornography; and (4) Appellant’s sentence was inappropriately severe. We find merit in the third AOE because only one of the five images charged images constitutes child pornography. Therefore, we set aside certain language in the child pornography specification and reassess the sentence.

APPELLATE ADVOCACY

Tessa Dysart at Appellate Advocacy Blog posts, ““This is Not Proper Appellate Advocacy”: Third Circuit Slaps Sanctions on Attorney Who Copied and Pasted Trial Court Briefs. The attorney was ordered to personally pay the defendant’s costs.

For a historical segue—you might remember that the NMCCA once had a problem of cut-and-pasting, largely wholesale the Government Answer to Appellant’s brief. In United States v. Jenkins, the court took up,

Here’s is a timely reminder about prosecution experts. This report comes from NBC news.

For more than three years, authorities in the state of Washington considered Dr. Elizabeth Woods one of their go-to experts in cases of suspected child abuse, often relying on her medical opinions to determine when to take children from parents or file criminal charges.

But this winter, Woods left her position as the director of the child abuse intervention program at Mary Bridge Children’s Hospital in Tacoma, and last month she was removed from the small roster of doctors who provide expert medical reports to the state’s child welfare agency, hospital and state officials confirmed. Some area prosecutors have also been sending letters to defense lawyers disclosing that Woods’ credibility as an expert witness has been called into question.

If approved by a federal court, the legal settlement will force the Army to review the discharges of recent veterans with mental health issues.

Tens of thousands of former soldiers with less than honorable discharges from the Army might get upgrades soon. In late March, a federal judge is expected to approve a nationwide class action settlement that would force the Army to reevaluate and possibly upgrade those discharges to honorable if there’s evidence of a mental health condition.

The agreement calls on the Army to go back and look at thousands of less than honorable discharges for soldiers who served during the Iraq and Afghanistan wars. If they had a condition like post-traumatic stress disorder or a brain injury, they can become eligible to upgrade their discharges and get access to benefits through the Department of Veterans Affairs.

Read National Veterans Legal Services Program (NVLSP) v. Austin, Sec. Def.

“Various statutory provisions and regulations require the U.S. Department of Defense (“DoD”) to maintain a publicly accessible website containing all decisions rendered by its Discharge Review Boards and Boards for Correction of Military/Naval Records.”

We all like to refer to these prior decisions to triage a new case and to assist formulate arguments for why our client should win. Because they are publically available it is not necessary to have a paid research account like Lexis or Westlaw.

On 10 March 2021, the CAAF granted a petition in U.S. v. Michael P. Whiteeyes on the following issue:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT’S STATEMENTS TO LAW ENFORCEMENT IN VIOLATION OF MILITARY RULE OF EVIDENCE 304(c).

The ACCA decision is here.

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