Articles Posted in Uncategorized

A Reid reminder.

Military.com reports U.S. Charges Son in Civilian Navy Staffer’s Killing in Bahrain. Bahrain declined prosecution; federal marshalls will bring him to the U.S. for prosecution in federal district court. Were this the early 1950’s it is possible he would be facing court-martial—that is until Reid v. Covert. In Reid v. Covert, 354 U.S. 1 (1956), the Supreme Court decided that it was unconstitutional to try at court-martial civilians accompanying the force overseas. Many years later, there had been a clamor about “dependents” and contractors escaping responsibility for crimes committed while accompanying their sponsor overseas.

A change to Article 2(a), UCMJ, was intended to fill in some of the blanks by extending jurisdiction to “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.”

Similar to its federal counterpart, section 90.404(2)(a) of the Florida Statutes states that

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Typically, these rules are used by prosecutors to prove a criminal defendant’s motive, opportunity, etc. But, at the federal level, defendants can use “reverse 404(b)” evidence to show, for instance, that someone else had a motive to commit the crime charged. And, as the recent opinion of the District Court of Appeal of Florida, Third District, in Posey v. State, 2021 WL 115437 (Fla.App.3rd 2021), makes clear, Florida similarly allows for “reverse Williams” evidence.

An implicit bias is “‘an association or preference that is not consciously generated and is experienced without awareness.’” Michele Benedetto Neitz, Pulling Back the Curtain: Implicit Bias in the Law School Dean Search Process, 49 SETON HALL L. REV. 629, 656 (2019) (quoting J. Bernice B. Donald & Sarah E. Redfield, Framing the Discussion, in ENHANCING JUSTICE: REDUCING BIAS 5, 14 (Sarah E. Redfield ed., 2017)). So, does a court violate the Constitutional rights of an African American defendant by precluding his attorney about implicit bias during jury selection? That was the question addressed by the Supreme Court of North Carolina in State v. Crump, 851 S.E.2d 904 (N.C. 2020).

In Crump, Ramar Crump, a African American man, was convicted of 9 counts of armed robbery and second degree kidnapping, 2 counts of possession of a firearm by a convicted felon, conspiracy to commit armed robbery and 2 counts of assault with a deadly weapon with intent to kill. These charges stemmed from a shootout between Crump and police officers.

So writes Prof. Colin Miller

The Pentagon Inspector General has announced plans to evaluate how well U.S. Central Command and Special Operations Command are following rules aimed at preventing war crimes.

In a memo issued Monday, the IG said that the investigation will focus on the commands’ efforts to carry out Defense Department directives aimed at reducing “potential law of war violations when conducting operations.”

The evaluation would also determine whether the two commands reported alleged war crimes in accordance with DoD policy, the IG said.

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

So, should this excited utterance exception apply to a 911 call about a stolen gun. That was the question addressed by the First Circuit in its recen opinion in United States v. Estes, 2021 WL 128707 (1st Cir. 2021)..

Mil. R. Evid. 610 prohibits using a witness’s religious beliefs to bolster or undermine their credibility.

But what about questions regarding whether a defendant had a “come to Jesus” moment after committing the crime charged? That was the question addressed by the Court of Criminal Appeals of Tennessee in its recent opinion in Pillars v. State, 2021 WL 57953 (Tenn. Crim. App. 2021).

Asks Prof. Colin Miller. He concludes that

No, this isn’t about the President, but about one of his cases that leads us to consideration of attorney ethics when deciding to withdraw from a case.

Prof. Jonathan Turley has this critique of one of DJT’s attorney’s seeking to withdraw from litigation.

On January 7th, an attorney representing President Donald Trump filed a one-page motion of withdrawal from a case filed shortly after the election. That is hardly remarkable with attorneys entering and leaving cases every day in federal court. What is remarkable is the reason.  Philadelphia-based attorney Jerome Marcus told the United States District Court for the Eastern District of Pennsylvania that he was withdrawing because President Trump used him, and his election challenge, to “perpetuate a crime.”  The filing raises some troubling questions regarding the alleged criminal conduct as well as the necessity of making such an allegation in a simple motion to withdraw from representation.

The Air Force’s top enlisted leader is looking into an incident involving an airman who was sent a Letter of Reprimand and a Letter of Counseling shortly after attempting suicide, so reports Task & Purpose.

The airman said their unit, the 460th Space Wing’s Dental Flight based at Schriever Air Force Base, Colo., was plagued by toxic leadership problems and a hostile work environment, and other airmen stepped up on Facebook to share their own horror stories from the unit.

The situation came to light on Friday, when the popular Facebook page Air Force amn/nco/snco shared a message from an airman who was sent to a psychiatric facility for a week after attempting suicide with an IV catheter needle. The airman said they were sent to a facility by unit leadership not because they had attempted suicide, but because they showed up to work seven minutes late the day after the attempt.

The NDAA veto having been overridden, look for changes to Articles 6b, 66, 67, 140a.

• Review amendments.–The amendments made by subsections (b) and (c) shall take effect on the date of the enactment of this Act, and shall apply with respect to any case in which every finding of guilty entered into the record under section 860c of title 10, United States Code (article 60c of the Uniform Code of Military Justice), is for an offense that occurred on or after that date.
• Standby for “bridge” cases in the same or similar way we have seen bridge cases cause difficulties with instructions and post-trial?

The now law NDAA for 2021 has a number of provisions including this one. If you are not aware, compassion fatigue is a real thing even for lawyers, more for defense counsel and SVC’s than prosecutors. If you have compassion fatigue that can adversely affect your court-room work as well as relationships with others in the court-martial process.

https://www.stress.org/military/for-practitionersleaders/compassion-fatigue

Congress wants the Secretary of Defense take a look at this issue.