Articles Posted in Uncategorized

There has been a discussion about access to court dockets by the media, practitioners, educators, and the public to information about on-going courts-martial.  For example here is a piece on CAAFLog.  While I have been a supporter of transparency, I from time to time wish we could do as other common law countries do about pretrial publicity in criminal cases – which is generally not much.

We go through a lot of handwringing, black markers, and sealing of documents to protect the names of victims of sexual assault for example.  Yet we pay scant regard for the privacy and rights of the individual accused.  Rarely do we see the media flurry and retractions when the accused is found not guilty.  Yet how does that accused put his life back in the box after an acquittal?  

So it’s with interest I have noted two New Zealand court-martial cases – here and here.

In its decision Wednesday in Kansas v. Ventris (No. 07-1356), the Supreme Court ruled that the government may impeach a defendant’s testimony using statements obtained during an interrogation that violated his Sixth Amendment right to counsel, even though the prosecution would be barred from using such tainted evidence as part of its case in chief.

So starts the analysis of the Supreme Court decision in Kansas v. Ventris on SCOTUSBlog.

There is a different take on Ventris at Mark A. Godsey, Thoughts on Kansas v. Ventris, CrimProf Blog, 30 April 2009.

Here is another read this article about a court-martial in New Zealand.  Same question, what’s different?

I mentioned an article yesterday about the court-martial of a New Zealand army officer.  I wondered if you’d noticed the same thing.

What’s the officers name?

The question relates to how other countries deal with trial by media.

Justice Souter’s nomination, although apparently predictable, is in the news.  Here is an interesting perspective on how his retirement and Senator Specter’s “defection” may impact the nominee to replace Justice Souter and all of the administrations future judicial nominations.

Prof. Michael C. Dorf, How Specter’s Defection Could Make it Harder to Confirm Pres. Obama’s Judicial Nominations, Dorf on Law, 28 April 2009.

Here is a piece on Kevin from the 28 April 2009, Washington Post.

The Kansas Court of Appeals continues the tradition of citation to anecdotal legal authority.  See The cult of Sir Cloudesly Shovell, CAAFLog, 21 April 2009.

It appears that the Kansas Court of Appeals cited the little watched short running show “Branded” as a basis to overturn a trial judges requirement that a convicted child abuser put notices on his lawn of his conviction.

ABA News, 24 April 2009.

Here is an interesting, very fact specific, federal case in which the forensic examination of a computer for child pornography was suppressed.  The accused had admitted possessing child pornography, showed the police his computer, but refused a search of it.  The police took the computer.  Then it sat around for about three weeks before the police got a search warrant.  The court does caution the case to be fact specific.

United States v. Mitchell, __ F.3d ___ (11th Cir. 2009).

Here is an article brought to our attention by FourthAmendment.com.

A thoughtful article about the Supreme Court’s "seizure" doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51 (2009).

Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The U.S. Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt “free to leave” or otherwise to terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only upon their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that although empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This Article presents the first empirical study of whether people would actually feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this Article concludes that people would not feel free to end their encounters with the police. Under the Court’s current standard, respondents would be seized within the meaning of the Fourth Amendment in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.

With the increasing release of information regarding the who, what, when, where, of torture approvals comes the need to relook at the court-martial convictions of the low level military personnel who executed the policy.  A policy that at the time of the trials was denied, hushed up, or ignored.  We don’t have to excuse them, but the junior military personnel once again came up on the sort end of the stick.

So, Daniel Nasaw, Report vindicates soldiers prosecuted over Abu Ghraib abuses, lawyers say.  The Guardian, 22 April 2009.

Often times the “foreign papers are more accurate, timely, and detailed.”  They have yet to be coerced or lured into blatting [n.1] the government agenda.