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Michael G. Heyman, Professor Emeritus, The John Marshall Law School (Chicago) .

Due Process Limits on Accomplice Liability

In a prior piece in this journal, I noted some disturbing developments in the law of

Protect Our Defenders (POD) has this to say about the recent vote on Sen. Gillibrand’s Military Justice Improvement Act.

Last week, 50 U.S. Senators stood with survivors and voted for Senator Gillibrand’s Military Justice Improvement Act (MJIA).

For two years in a row, a majority of the Senate has told the Pentagon to fix the arbitrary and biased military justice system. Unfortunately, this common-sense legislation was blocked with a threat of a filibuster, as it was last year, requiring 60 votes to pass instead of a simple majority.

Here is a link to the MCM changes effective 17 June 2015.

The Georgia Supreme Court extends Padilla

In Alexander v. State, decided on May 11, the Georgia Supreme Court agreed that a failure to advise on parole issues from a guilty plea was ineffective assistance under Strickland v. Washington.

Military lawyers know there are two specific areas they must ensure adequate advice about to clients:  the possible impact of sex offender registration and possible adverse citizenship and immigration decisions.  Now–at least in Georgia–you can add one more: impacts on clemency and parole.

Listen up:  “Every occasion of a proved false allegation has an insidious effect on public confidence, sometimes allowing doubts to creep into when one shouldn’t exist.”  Said the judge on sentencing.

That’s right, the failure to hold people accountable for false accusations harms true victims.

Col Christensen of POD says this doesn’t happen and that people don’t make false allegations for these reasons.  Sorry mate, read this.

Ask the prosecutor in this case.

In re Kline.

Military prosecutors are bound by Service rules of professional responsibility.  Those rules are based on the ABA Model Rules.

1 May 2015 saw the release of a number of reports and memorandums regarding military sexual assault.  Some initial takeaways (which in my view certain people are either deliberately ignoring or misreporting).

No POD, the conviction rate is not 5%– the conviction rate is 67% for penetrative offenses, and 84% for non-penetrative (conctact) offenses.

If POD is claiming only a 5% conviction rate, then they are presuming guilt in each allegation made, regardless of the truth of the claim and the amount of evidence available.

E. Samuel, An Historical Account of the British Army: And of the Law Military, as Declared by the Ancient and Modern Statutes, and Articles of War for Its Government with a Free Commentary on the Mutiny Act, and the Rules and Articles of War; Illustrated by Various Decisions of Courts Martial, (1816).

There are two items from Canada that are worth the read.

Marie Deschamps, C.C. Ad.E., External Review Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015.

Under the standard articulated by Criminal Code and the Supreme Court of Canada, genuine consent may be communicated by word or conduct. However, where either party indicates by any means—verbal or not—that he or she is uncomfortable or reluctant to continue with the sexual activity, an obligation crystallizes on the other party to specifically obtain consent before proceeding any further. While the Court did not explicitly require that this consent be verbal, as a practical matter where there is doubt as to whether or not a party has consented to sexual activity, the only clear way to dispel such doubt will be to verbally seek consent.

No. 15-0330/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE.

The decision of the Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of United States v.Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).