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On 2 October, the Supreme Court granted certiorari in a case that might have important ramifications for military justice – Ohio v. Clark. And it is a source for potential motions going forward, regardless of CAAF’s recent Squire opinion.  Here is the question presented.

Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

So you can see where I am going.

Here are a couple of articles worth the read if you have some time this weekend.

The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies, Melissa Hamilton, University of Houston Law Center, September 7, 2014, Stanford Law & Policy Review, Vol. 26, 2015, Forthcoming

Ms. Leveritt has recently taken on the responsibility of Director of the Center for Prosecutor Integrity‘s Wrongful Convictions Academy, which is brand new, and is just spinning up.  See Prosecutors Have All the Power.  This article is Arkansas-specific, it may likely be applied nationwide.

The title of the article which is a must read: Honest False Testimony in Allegations of Sexual Offences.

Cronin v. United States, __ F.3d ___ (Fed. Cir. Aug. 28, 2014), deals with claims for injuries sustained during or aggravated by conditions of service.  It is noteworthy to me because, among a number of significant claims of physical injury, the plaitiff raises issues of PTSD for which she was not to be compensated.  She attributes the PTSD partly to, multiple physical and sexual assaults, stalking, and extreme sexual harassment.

The Court of Claims found the PTSD claim without merit, and the appeals court affirmed.

Domestic violence is bad.  But I would suggest that the issue is normally only dealt with as a women’s issue.

This report should cause people to think – just a little bit – that men are not always the perpetrators, and that “alway believe the victim” – read the woman, training is flawed.

One-third of domestic violence victims in active-duty military families are men

“That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.”

 Bill Otis, Politics & Prosecution, a Toxic Brew, 16 August 2014.

I am not a libertarian, but I am one of the defense counsel and independent liberals Mr. Otis will frequently berate, sometimes with rather over the top hyperbole.  I read crimeandconsequences regularly because many posts raise important questions, but you have to take note of the style.  But on this toxic issue we are of the same mind; both as to the Perry prosecution issue and also the abuse of power.

Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).

Haggerty was accused of defrauding Mayor Bloomberg.  During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.

For the military defense lawyer an immediate lesson is that the defense failed to object at trial.  When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error.  In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence.  But they were not raised on appeal so the court did not address them.  Trial defense counsel should not be dissuaded from objecting.  As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.

Riley v. California.  An important ruling today.

If you are concerned or unhappy with the high rate of “affirmed” – often without relief – U.S. courts-martials, perhaps you should consider moving to India.

My good friend and colleague Gene Fidell at globalmjreform.blogspot.com/, reports on the 90% rate of reversal of court-martial convictions.

Further to yesterday’s post this article from the Times of India reports that the High Court has set aside decisions of the Armed Forces Tribunal about 90% of the time since the Delhi High Court decided in 2011 that AFT decisions were subject to review in the High Court as well as directly by the Supreme Court.

Most are now familiar with the NMCCA decision in United States v. Howell.  In that case, compared to several others, the court found there was UCI affecting the trial and granted the appeal in Howell’s favor.  Howell is not out of legal jeopardy, because the court decided:

A rehearing may be ordered.

And it is reported that Howell is still in pretrial confinement., while a decision is made on whether to conduct a retrial or administratively separate him with an OTH.