Is there about to be another shift in interrogations law from the Supreme Court. Earlier we mentioned several commentators on the subject of how the "new" court is changing personal rights when faced with investigators. See an earlier post: Exclusionary Rule — To be Dead Letter Law — Possibly?
Court questions Michigan v. Jackson from SCOTUSBlog.
The Supreme Court on Friday told lawyers in a pending case, heard on
United States v. Forney, __ M.J. ___ (C.A.A.F. March 26, 2009). This is a case where the appellant was convicted on charges and evidence for a situation later declared unconstitutional by the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). This is the issue of actual versus virtual CP — primarily the Japanese anime cartoon type. However, the court found that the appellant could properly be convicted of conduct unbecoming in violation of Article 133, UCMJ.
[T]he possession of images of virtual children engaged in sexually explicit conduct may give rise to a conviction for conduct unbecoming an officer and a gentleman.
That the possession of virtual child pornography may be constitutionally protected speech in civilian society does not mean it is protected under military law.
United States v. Clayton, __ M.J. ___ (C.A.A.F. March 26, 2009).
In this case one police officer testified, and he was allowed to testify about his personal knowledge of drugs found. However, the military judge also allowed the witness to lay a foundation for a redacted translation of a German police report of drugs found and their place of finding by other police officers and a civilian. The other police officers and the civilian were not called as witnesses and they had apparently not testified at an Article 32, UCMJ, hearing or in a deposition.
Here is the oral argument transcript from United States v. Denedo, argued at the Supreme Court this week.
Also, here is the link to CAAFLog's review of the argument.
One of my favorite newspapers, The Onion, has this comment on Stop-loss from the person in the street.
I'll use the posting of JURIST to indicate that:
The US House Judiciary Committee [official website] on Wednesday approved a bill HR 951 that would limit the government's ability to compel
reporters to disclose confidential sources. Under the terms of the Free
tip: to Crime & Consequences, who gives a Hat tip to Howard Bashman at How Appealing for his post reporting on an audio segment on NPR's "Day to Day"
discussing the reliability of eyewitness identification in criminal
trials. The segment, from Slate.com writer Dahlia Lithwick, dicusses
United States v. Pitcher, 05-3182r, 2009 U.S. App. LEXIS 5103 (2d Cir. March 11, 2009). In this case appellant claimed IAC. He claimed on direct appeal that he wouldn't have plead not guilty, but for the overly rosy picture of his chances of success painted by his trial defense counsel. He lost. So he took a habeas petition and succeeded in having the district court vacate the findings and sentence based on IAC. Pitcher v. United States, 371 F. Supp. 2d 246
(E.D.N.Y. 2005).
I may have read too much into the case, but there is an underlying theme that defense counsel may have a duty to strong arm an 'obviously guilty' client into a pretrial agreement. There were issues raised in the collateral attack about the procedures under 28 U.S.C.S. § 2255, which aren't relevant for our story. The points for trial defense counsel are the client who lies, giving a proper assessment of the client's chances based on the facts available, and it's improper to arm-twist a client into accepting a pretrial agreement.
Entitled as a "shameless plug" Mike Navarre is moderating a 1.5 hr CLE tomorrow. Here, shamelessly, is the whole item lifted.
tomorrow on Criminal Accountability for Civilians in the Battle Space.
No. 09-0185/AR. U.S. v. Makisha I. MORTON. CCA 20060458. Review granted on the following issue:
WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE ARMY COURT ERRED IN FINDING APPELLANT GUILTY OF A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT.
The court might consider the resolution in United States v. Thompson, 67 M.J. 106 (C.A.A.F. 2009).
Court-Martial Trial Practice Blog