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We may have reached, “a fairly critical point where traditional photographic evidence just isn’t as reliable as it used to be.” This according to our most recent podcast guest, Joe Kashi. In addition to being a trial attorney in Alaska, Joe has worked in automation technology and is himself a serious photographer. Recently Joe taught a two-part webinar series, “Using and Misusing Visual Evidence, Parts 1 and 2,” moderated by ALPS Risk Manager and podcast host, Mark Bassingthwaighte. In this interview Mark and Joe delve even deeper into how technology and the accessibility of photo editing software is changing how we view photographic evidence in the courtroom.

There has been some similar thought regarding emails and texts.  There are a number of free easy apps to put on a cell phone that can allow spoofing of a email address or text.  But what about photographs, that’s the point here.  The quote comes from an interesting item:

ALPS In Brief Podcast – Episode 20: Can We Still Trust Photographic Evidence?

The court finds that “the good faith exception to the exclusionary rule does not apply here. Contrary to the government’s assertion, this case directly fits the Supreme Court’s admonition in Leon that ‘[s]uppression … remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.’ Leon, 468 U.S at 923; see also id. at 926 (‘[S]uppression is appropriate … if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.’).” There was nothing to support probable cause except the officer’s experience. No facts, no nothing.

United States v. Roman, 2018 U.S. Dist. LEXIS 145893 (D. Mass. Aug. 28, 2018).  I wonder if there’s something about the MCIO search authorization requests to challenge?  Much of their declaration is supposition, speculation, and “experience” as they go on a fishing expedition.

I confess to confusion about the post-trial actions of a convening authority.  When I first began trials in 1980 the right to clemency was robust and generally, the CA could do just about anything.  I’m seeing more recent cases with an issue about what can and can’t be done by the CA.

Congress significantly changed the statutory scheme in Article 60, UCMJ, through the National Defense Authorization Act for Fiscal Year 2014. See Pub. L. No. 113–66, § 1702, 127 Stat. 954–958 (2013) (codified at 10 U.S.C. §860(c)(4)(A)). What had been authority “to modify the findings and sentence of a court-martial [a]s a matter of command prerogative involving the sole discretion of the convening authority” became limited power to make only certain modifications under a restricted set of circumstances. Article 60(c)(4)(A), UCMJ, now provides that “the convening authority . . . may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.” 10 U.S.C. § 860(c)(4)(A). Congress set

forth only two narrow exceptions to these limitations[.]

While doing some research on Wegner’s Ironic Process Theory, I came across this case–Volkmer v. United States, 13 F.2d 594 (6th Cir. 1926).

The other ground presents a more serious question. It is based on the concluding argument of the assistant district attorney, during which the following occurred:

“Assistant District Attorney: A skunk is always a skunk; you can decorate him any way you want to.

USNI news reports https://news.usni.org/2018/08/09/navy-to-retire-poor-performing-senior-commanders-and-captains

Read NAVADMIN 193/18  NOTICE OF CONVENING FY-19 ACTIVE-DUTY NAVY COMMANDER AND CAPTAIN SELECTIVE EARLY RETIREMENT BOARDS

Readers will be aware of the attention given to senior Navy officers who are getting in trouble for misconduct or poor performance.  The collision cases may also be a factor behind the following initiative.

In Forrester, our superior court clarified that the unit of prosecution for possessing child pornography is tied to the material containing illicit images, and “not the quantity or variety of visual depictions.” Forrester, 76 M.J. at 481. In Mobley, we held when multiple illicit images or videos are possessed on a single computer, the computer is the “material” constituting the unit of prosecution.  Mobley, slip op. at 5.

We conclude the proper unit of prosecution for both Specification 2 and Specification 3 is the appellant’s laptop computer, regardless of whether the images were found in allocated or unallocated space. Accordingly, we consolidate Specifications 2 and 3 of The Charge in our decretal paragraph.

The military judge correctly noted that several of the images at issue are duplicates. The number of images alleged, however, is irrelevant to the unit of prosecution and is surplus to the specification the government chose to draft. While the number of images is a proper matter in aggravation, it need not be alleged in the specification and may be offered as aggravating evidence through a stipulation of fact, or any otherwise proper form of evidence. For the purposes of alleging the offense of possession of child pornography under Article 134, UCMJ, it suffices to charge that an accused possessed “multiple” images.

Self-assessment.  As a supervisor of counsel, I would ask them to come to me after trial and discuss what they think the three best and worst things they did.  I was intent on mentoring them to reinforce the good and see if, any truly bad issues could be resolved in the future.  Like you, I spend time after trial wondering ‘what if.’  Such ruminations are helpful and necessary.  But . . .

The initial claim of ineffectiveness centered on an email appellant’s civilian defense counsel (CDC) sent his military defense counsel. In the email, the CDC expressed a low opinion of his trial performance, writing, “I screwed up crossing [the victim]. I alone was ineffective. . . .”

We first address the weight we should give the civilian defense counsel’s opinion contained in an email that he was “ineffective.” We give it slight weight for two reasons. First, as the Supreme Court has stated, “After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome.” Harrington v. Richter, 562 U.S. 86, 109 (2011). Second, a counsel’s subjective evaluation is of only marginal relevance in resolving an objective inquiry. Strickland requires an objective inquiry. 466 U.S. at 688.

Here we go.

Carissa Byrne Hessick and F. Andrew Hessick, Procedural Rights at Sentencing.  Notre Dame Law Review, Vol. 90, 2014 ForthcomingUniversity of Utah College of Law Research Paper, No. 80

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws. By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections. This Article challenges this discrepancy.