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FLETC’s The Informer is out for this month.  In addition to commentary on Ventris and Gant, here are a couple of summaries of two computer search cases.

10th CIRCUIT  United States v. Otero, 2009 U.S. App. LEXIS 9001, April 28, 2009.

The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the Fourth Amendment particularity requirement that much more important.  A warrant authorizing a search of “any and all information and/or data” stored on a computer is the sort of wide-ranging search that fails to satisfy the particularity requirement.  Warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.

In some, non-U.S., police circles it’s called gilding the lily.  But you are not supposed to get caught.

Officer Investigated For Perjury After DUI Case Falls Apart, By Dan Morse, Washington Post, 7 May 2009.

Although gilding the lily is really more subtle than this.  It’s those oft remembered micro-facts months after the case, arrest, interrogation, etc.

Here is a fascinating article and it references CAAFLog.

Lee has concerns about the potential for bloggers to impact the outcome of a case. She even suggests that advocates may go so far as to "game" a case, by writing publicly about it in a blog to spur the Court to grant cert or rule a particular way. Because Lee believes that bloggers could impact the outcome of a case, she argues that the legal profession should consider regulating ex parte blogging, despite the positive benefits — e.g., discovery of errors and stimulating public debate — that blogging brings to the table.

This comes from several sources, but see, “Do we need ethics rules on ex-parte blogging?” on Legal Blog Watch.

DOJ has dropped its appeal and Watada will not be retried because of double jeopardy concerns.

Here is a more detailed SeattlePI.com report.

There will be no more oral arguments this term.  The “watch” now relates to two pending decisions of importance to military justice practitioners.

The most important is when will the Supremes issue an opinion in Melendez-Diaz.  Currently the law in the military for admission of forensic reports is Harcrow (for which M-D is on point).  It is possible that the decision could also have some influence over the CAAF decision in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006).  I can only hope.  I appreciate that I’m among the very few that believes Magyari wrongly decided because of the need to protect the military urinalysis program.  Having had a case in which Dr. Pappa of the A.F. Drug Testing Lab testified on some specific points contradictory to some of the assumptions of the Magyari opinion I’m hopeful there might be some useful language out of M-D.  Although as Chief Inspector Wilcox would say, “I’m not sanguine, not sanguine at all.”

Then there is the coram nobis case of Denedo, which will impact military writ practice and some CAAF juridisctional issues.

Here is an item from the FayObserver.com

Why is Ronald Adrin Gray still alive?

Computer search warrant was badly drafted, and it lacked particularity. However, the good faith exception saved the search because the officer sought counsel from the USMJ and AUSA in executing it. United States v. Otero, 2009 U.S. App. LEXIS 9001 (10th Cir. April 28, 2009).

Police who were actually investigating the possibility child porn was on defendant’s computer did not misrepresent what they were looking for when they said credit card fraud, but they really knew that defendant had used his credit card on a child porn website. Possibility of credit card fraud was enough. [HA!] People v. Prinzing, 2009 Ill. App. LEXIS 234 (April 21, 2009).

FourthAmendment blog.

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?