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NMCAA’s decision in United States v. Johnson, NMCCA 200900141 (N.M. Ct. Crim. App. 25 August 2009), nicely sets out the courts view of when and how bad language is subject to prosecution as indecent.  A totality of the circumstances factual and contextual test must be used it seems.

The precise parameters of what constitutes indecent language have been the subject of considerable debate over the years.

The court examined the impact of United States v. Brinson , 49 M.J. 360 (C.A.A.F. 1998) and United States v. Negron, 60 M.J. 136 (C.A.A.F. 2004).  In Negron the court stated that prospectively:

Following on the heels of NCIS’s recent testing of video-taping interrogations, it appears that OSI will start recording confessions.

Starting on 1 October, Air Force OSI will, as a matter of policy, make a video recording of ”subject interviews.”  Recording of witness and vicitm interviews will be optional.

/tip CAAFLog.

AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

Formal Opinion 09-454 July 8, 2009

Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense.

This ethical opinion reinforces the rule that the prosecutors obligation to disclose certain types of information to the defense is self-executing – that is Brady, Kyles, Giglio, and similar material must be disclosed even though the defense has not submitted a formal discovery request — and goes beyond what the R.C.M. and appellate decisions say.  So, for example, a prosecutor has an ethical duty to disclose certain information she learns during pretrial interviews of prosecution witnesses.

Here is an interesting case from the 9th Circuit on computer searches.  There may be some applicability here to military computer searches.  The opinion is written by the well respected Judge Kosinski.

CA9: Balco en banc: Computer search under Tamura not an excuse for a plain view; there has to be limits

The Ninth Circuit in Balco en banc (panel opinion: United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008)) determines that seized computer information needs limits under the “venerable” pre-“information age” Tamura case (United States v. Tamura, 694 F.2d 591 (9th Cir. 1982)). This is a remarkable effort at keeping computer searches from becoming general searches or excuses for plain view inside the hard drive. United States v. Comprehensive Drug Testing, Inc., No. 05-10067 (9th Cir. August 26, 2009) (by Kosinski, J.

Here is the start of some commentary by Volokh about limits on fishing surfing expeditions.

SOR seems to be a current topic, here is a new post from Prof. Yung:

Another Free Exercise of Religion Issue for a Sex Offender

These days, sex offenders can’t even go to church in some areas. Not long ago the State of Georgia enacted a law prohibiting sex offenders from volunteering at church. Now a North Carolina sex offender is fighting for the right to attend church, albeit one that also maintains a day-care center.

The issue of post-trial delay and prejudice is on the front burner again as a result of CAAF’s decision in United States v. Bush.

Here is a repeat of part of a post of mine from April 2008.

1. After trial — sit down with the client and explain the post-trial process specific to the case. This is critical because the boilerplate post-trial advice given by the military defense and military judge is just that, generic non-specific advice.

Recently CAAFLog had a discussion about military appellate cases and publication or non-publication.

PACER is a pay to use system that allows access to lots of federal courts documents that are “publically available” but at a fee.

Recently a technology blogger I follow FutureLawyer had a comment about RECAP and PACER.

Justice delayed is….oh, never mind

That business about justice delayed being justice denied apparently has a statute of limitations. At least, that must be the way it seems for Marco A. Bush, a former private first class in the Marine Corps.

I like to read S&S because of their ability to reduce an issue to its core point.

As spelled out in the new opinion: "The record was ‘apparently lost in the mail for over six years.‘"

With several military personnel on death row and in the federal appeals/habeas process, and several death referred cases pending, here is an interesting article on some federal judges pushing back on limits on appeals.

Limits On Death Penalty Review Sparking Judges’ Dissents

Posted Aug 14 2009 –

Army reduces soldiers’ murder sentences

By Seth Robson, Stars and Stripes
Mideast edition, Saturday, August 15, 2009

GRAFENWÖHR, Germany — The life sentence of a U.S. soldier convicted for the execution-style killings of four bound and blindfolded Iraqi detainees has been reduced to 40 years, military officials announced Friday.

. . .