Articles Posted in Uncategorized

At 08.20, 24 April 2009, CAPT Kevin J. Barry, USCG (Ret.) became an honor graduate of life. 

His death is a loss not just to his family and friends but to the military justice community as a whole.  Kevin worked hard and long as an advocate for his clients, for the system, and an advocate for changes in military justice.  He spoke with passion, with clarity, and with knowledge.  His views were not always accepted, but they are universally respected as is he as a person.  Kevin practiced the profession of law, not the business.

For many of us he was a mentor, an inspiration, and a good friend in our professional lives.  For some of us his inspiration and courage went well beyond that into our personal lives.  Watching and listening to him in his struggles against cancer gave others hope and the will to fight their own struggles.

One of the most potentially influential Supreme Court decisions for trial practitioners is still pending a decision – Melendez-Diaz.  This is the issue of forensic reports as testimonial under Crawford.  The betting appears to be that it will be a mind-blower written by Justice Scalia.

On 6 April 2009, Professor Freidman, an amicus in the case, noted.

The Supreme Court completed its latest sitting today without deciding Melendez-Diaz v. Massachusetts. The long wait — the case was argued November 10 — suggests that something is brewing. Perhaps the Court is still debating the merits of the particular question presented, whether a forensic lab certificate reporting the presence of cocaine is testimonial. But I still think that should be an easy yes. Perhaps they are debating broader questions concerning the meaning of "testimonial." And perhaps they are debating yet more general questions of constitutional interpretation. April 21 is now the first date on which, barring something unusual, perhaps we will find out.

Jayme Evans, JAG Corps “Keistered” Justice In Foster Case, Canadian Free Press, 20 April 2009.

No military prosecutions in recent history have garnered as much negative publicity for the U.S. Marines as have the cases of the Marines of 3/1 Kilo Company, ambushed in Haditha, Iraq, in November of 2005. But the wrongful conviction and imprisonment of another Marine further reinforces the public perception of something institutionally corrupt about the Navy Judge Advocate General Corps’ application of the Uniform Code of Military Justice.

Here’s an interesting Order published at Goodfellow AFB, which prohibits military personnel assigned to the 17th Training Wing from traveling to certain parts of Mexico.

[T]he border areas of Mexico, including Tijuana, Nogales, Juarez, Nuevo Laredo, Acuna, Piedras Negras, and Reynosa/Matamoros.

All active duty members, reservists and guardsmen in Title 10 status, attached to the 17 TRW and tenant units are prohibited from traveling to these affected areas. All other 17 TRW personnel, including guardsmen in Title 32 status, DOD civilian employees, contractors and family members are strongly discouraged against travel to these areas of Mexico.

Here is an interesting piece from Karen Franklin on her blog.

Here is Edward Humes, Guilt by the Numbers, California Lawyer, April 2009.

This should not be an issue in most military cases because there’s usually an identified suspect.  But it’s interesting to see, once again, how law enforcement and prosecution control of the crime labs can potentially influence what the public (and defense) sees or gets – the cheerleading.

The hideous nature of an offender’s conduct must not drive us to forget that it is not severe punishment that promotes respect for the law, it is appropriate punishment. Although there are clearly times when anything less than severe punishment undermines respect for the law, it is just as certain that unduly severe punishment can negatively affect the public’s attitude toward the law and toward the criminal justice system. It is no doubt partly for that reason that jurists have referred to the responsibility of sentencing as "daunting." See United States v. Grober, F. Supp. 2d , 2008 WL 5395768, at *1 (D.N.J. Dec. 22, 2008) (quoting then Chief Judge Becker in United States v. Faulks, 201 F.3d 208, 209 (3d Cir. 2000)). The power and responsibility of a sentencing court is indeed, nothing short of "daunting." It requires a careful balancing of societal and individual needs, and an ability to determine a sentence based on dispassionate analysis of those often competing concerns. United States v. Olhovsky, No._________, 2009 U.S. App. LEXIS 7895, at *56–1 (3d Cir. Apr. 16, 2009).

Here is an interesting bit from Crime & Consequences blog.

Reprimanded for Delayed Ruling:  At Sentencing Law and Policy, Doug Berman posts an excerpt from a Memphis Commercial Appeal article describing the public reprimand of a Shelby County Criminal Court judge for taking more than seven years to rule on a death penalty appeal.  According the the article, Judge Carolyn Wade Blackett was publicly reprimanded for waiting seven years, five months and 21 days to enter her ruling on Perry Cribbs’ death penalty appeal.

Haven’t noted something on technology for a while, so here is a piece by the American Constitution Society (the antithesis of the Federalist Society).

Susan Freiwald, Phone Tracking Should Require a Warrant. 

A pending case in the 3^rd Circuit U.S. Court of Appeals raises a profound question — should the government be able to track your location without a warrant? Not so long ago, few of us carried cell phones. Today, the vast majority of Americans does. At stake are the rules for tracking the location of cell phones and their owners.

For more than five years, the ACLU and other advocacy organizations have been seeking the release of Office of Legal Counsel (OLC) memos that supplied the basis for the Bush administration’s interrogation, detention, rendition, and warrantless surveillance policies.

So here they are from the ACLU blog.

Concurring Opinions blog is discussing speculation that we will soon hear a retirement announcement from Justice Souter.  So,

This means that breathless speculation about a successor can begin.