Articles Posted in Uncategorized

After a lengthy but successful appeal, I get this message from a client.

As of this morning I am officially off the Sex Offender registration list (which is great cause I need a job). My family and I just wanted to again send you both a big thank you for all the hard work and great advice you put in over the past few years.

In a legal earthquake for the military justice system, the Court Martial Appeal Court of Canada (CMAC) has split 2-1 to strike down s. 130(1)(a) of the National Defence Act (NDA) because the majority held that the provision — which deems Criminal Code offences committed in Canada by military members to be “service offences” — deprives military accused of their Charter s. 11(f) right to trial by jury.

The Sept. 19 majority decision by CMAC Justices Jocelyne Gagne and Vital Ouellette (Chief Justice Richard Bell dissented) ruled that to deprive a military accused of a trial by jury for offences punishable by more than five years in prison, and that were committed within Canada, is not justified under s. 1 of the Charter as a reasonable and demonstrably justified limit in a free and democratic society: R. v. Beaudry 2018 CMAC 4.

The Lawyers Daily (Canada).

A retired judge in Iowa recently defended himself in a hearing of a contested order by saying, “I didn’t write this thing.” A review of Judge Edward Jacobson’s rulings found that he had failed to notify the parties in 13 cases where he had signed proposed rulings written by lawyers (presumably the lawyer involved in the litigation). Judge Jacobson said he believed it was common practice to have the lawyers in the case write the orders.

I think the judge is correct – it is common practice for the court to ask one of the attorneys to write orders at various stages of any case. The difference is that this is usually common knowledge to the parties involved in the case, and opposing counsel is consulted before submission of the proposed order, or at some stage before the order becomes final. The request for the order writing is usually done in the presence of both attorneys, so all parties are fully aware of the plan. This was not done in several of Judge Jacobson’s cases.

This practice raises a question though, should this be the practice at all? Why is it that the work emerging from a judge’s chambers is primarily drafted by a lawyer involved in the litigation? Isn’t a judge who does this just shifting her workload to the lawyer who will presumably bill the client for the time spent drafting an order? Or is it proper and more expedient for the lawyers in the case to do it themselves? They are better acquainted with the intricacies of the issues that must be addressed in any order, and would be ready to critique a judge-drafted order that missed important items anyway, which would slow down the process.

We may have reached, “a fairly critical point where traditional photographic evidence just isn’t as reliable as it used to be.” This according to our most recent podcast guest, Joe Kashi. In addition to being a trial attorney in Alaska, Joe has worked in automation technology and is himself a serious photographer. Recently Joe taught a two-part webinar series, “Using and Misusing Visual Evidence, Parts 1 and 2,” moderated by ALPS Risk Manager and podcast host, Mark Bassingthwaighte. In this interview Mark and Joe delve even deeper into how technology and the accessibility of photo editing software is changing how we view photographic evidence in the courtroom.

There has been some similar thought regarding emails and texts.  There are a number of free easy apps to put on a cell phone that can allow spoofing of a email address or text.  But what about photographs, that’s the point here.  The quote comes from an interesting item:

ALPS In Brief Podcast – Episode 20: Can We Still Trust Photographic Evidence?

The court finds that “the good faith exception to the exclusionary rule does not apply here. Contrary to the government’s assertion, this case directly fits the Supreme Court’s admonition in Leon that ‘[s]uppression … remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.’ Leon, 468 U.S at 923; see also id. at 926 (‘[S]uppression is appropriate … if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.’).” There was nothing to support probable cause except the officer’s experience. No facts, no nothing.

United States v. Roman, 2018 U.S. Dist. LEXIS 145893 (D. Mass. Aug. 28, 2018).  I wonder if there’s something about the MCIO search authorization requests to challenge?  Much of their declaration is supposition, speculation, and “experience” as they go on a fishing expedition.

I confess to confusion about the post-trial actions of a convening authority.  When I first began trials in 1980 the right to clemency was robust and generally, the CA could do just about anything.  I’m seeing more recent cases with an issue about what can and can’t be done by the CA.

Congress significantly changed the statutory scheme in Article 60, UCMJ, through the National Defense Authorization Act for Fiscal Year 2014. See Pub. L. No. 113–66, § 1702, 127 Stat. 954–958 (2013) (codified at 10 U.S.C. §860(c)(4)(A)). What had been authority “to modify the findings and sentence of a court-martial [a]s a matter of command prerogative involving the sole discretion of the convening authority” became limited power to make only certain modifications under a restricted set of circumstances. Article 60(c)(4)(A), UCMJ, now provides that “the convening authority . . . may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.” 10 U.S.C. § 860(c)(4)(A). Congress set

forth only two narrow exceptions to these limitations[.]

While doing some research on Wegner’s Ironic Process Theory, I came across this case–Volkmer v. United States, 13 F.2d 594 (6th Cir. 1926).

The other ground presents a more serious question. It is based on the concluding argument of the assistant district attorney, during which the following occurred:

“Assistant District Attorney: A skunk is always a skunk; you can decorate him any way you want to.

USNI news reports


Readers will be aware of the attention given to senior Navy officers who are getting in trouble for misconduct or poor performance.  The collision cases may also be a factor behind the following initiative.

In Forrester, our superior court clarified that the unit of prosecution for possessing child pornography is tied to the material containing illicit images, and “not the quantity or variety of visual depictions.” Forrester, 76 M.J. at 481. In Mobley, we held when multiple illicit images or videos are possessed on a single computer, the computer is the “material” constituting the unit of prosecution.  Mobley, slip op. at 5.

We conclude the proper unit of prosecution for both Specification 2 and Specification 3 is the appellant’s laptop computer, regardless of whether the images were found in allocated or unallocated space. Accordingly, we consolidate Specifications 2 and 3 of The Charge in our decretal paragraph.

The military judge correctly noted that several of the images at issue are duplicates. The number of images alleged, however, is irrelevant to the unit of prosecution and is surplus to the specification the government chose to draft. While the number of images is a proper matter in aggravation, it need not be alleged in the specification and may be offered as aggravating evidence through a stipulation of fact, or any otherwise proper form of evidence. For the purposes of alleging the offense of possession of child pornography under Article 134, UCMJ, it suffices to charge that an accused possessed “multiple” images.