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Over the last several years, I have noticed quite a few cases on appeal challenging improper arguments made by the prosecutor. Here is a short burst on a recent approach I have taken.

Standard of review

            Prosecutorial error in making an improper argument is a legal question reviewed de novo. If there is no object to the errors, this Court applies a ‘plain error” standard of review. An appellant must show “(1) there is an error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017); United States v. Erikson, 65 M.J. 221 (CA.A.F. 2007); United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).

Civilian counsel don’t always get paid by the client. Rather, it oftentimes can be the parents or a family member. Technology and other innovations have brought us crowdfunding and organizations set up to help defray legal fees for a court-martial accused.

I recently participated in a Zoom discussion about this topic and its ethical concerns.

Here is a link.

For your reading. R. Michael Cassidy, Character, Credibility and Rape Shield Rules. RESEARCH PAPER 542, Boston College Law School, October 8, 2020.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

“Thinking about bringing marijuana on base? Weed rather you didn’t,” the Naval Submarine Base posted on Facebook on July 1, the day possession of marijuana became legal in Connecticut. “State law legalizing possession of marijuana doesn’t apply to military installations.”

A few weeks later, the sub base posted a graphic with the message, “We’re going to be blunt. Don’t bring marijuana on base.”

Active-duty and civilian Navy personnel hope their puns will grab people’s attention and get the message through.

A servicemember can refuse to take a COVID vaccine–BUT there are potential disciplinary consequences.

Military law is clear that a servicemember can be ordered to submit to vaccinations. This happens at the beginning of enlistment when you are required to have or get certain vaccinations. This is a long-standing practice when reporting to MEPS for medical screening.

When deploying to certain overseas locations vaccinations to protect against local disease are required.

We all have clients who have been ordered to enter their passwords to their cellphone so the investigators can forensically examine the phone. As military defense counsel we frequently have these issues come up.

In 2018 there were an estimated 396 million smartphones and cellphone accounts nationwide. Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2206 (2018). Important personal information exists in smartphones. In the context of searching smartphones, the requirement for specificity should be at its apogee. Smartphones are mini-computers with extraordinary amounts of personal information, increasing exponentially on the device. Invading a smartphone is more harmful, quantitatively, and qualitatively, to privacy than invading a house or even early cellphones. See generally, United States v. Riley, Brief of Electronic Privacy Information Center (EPIC). The court in Riley observed that,

“modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smartphone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago[.]

We all have clients anxious to know their SOR status post-conviction.

We are required to, at minimum, advise them of the DoD regulation when there is a guilty plea for charges which might require registration.

But clients are never satisfied. Here is one case that might have some relevance to registrant’s in South Carolina.

There was a time when having adverse information in a restricted folder in the official record meant something in terms of lasting effect of that information.

Over time that changed if the officer was selected for promotion. A post-selection screen was then made of everything before forwarding the officer’s name for promotion.


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