Here is a link to Dave Schlueter and Lisa Schenk’s White Paper
Here is a link to Dave Schlueter and Lisa Schenk’s White Paper
Going through some old files I came across the
Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).
Should the TJAGs also send a “letter to self?”
Once again it is the duty of the defense counsel to police the prosecutors not for the prosecutors to police themselves. That is one of the conclusions from the new decision—United States v. Voorhees,
just decided by the U. S. Court of Appeals for the Armed Forces.
SCOTUSBlog reminds us of some upcoming criminal law cases in the coming term. While generally interesting, the case to watch is:
In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.”
Once the MCIO gets a “confession” or DNA in a sexual assault case, it seems, they stop investigating–bad.
Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.
Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk. OK, where are the bar receipts? No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available. Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts. The receipt tells you a number of things: time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?) Or, how about the video from the base entry point when the CW walks or drives or is driven on base? Is it possible the video helps show how unintoxicated the CW was or wasn’t? CCTV? Remember, the MCIO doesn’t usually care about this stuff.
Task Force Purple Harbor, a joint NCIS-led Task Force, stood up immediately following Marines United during March 2017, has identified six special courts-martial which have adjudicated cases related to the actual, attempted, or threatened nonconsensual distribution of intimate images. Of note, three of the cases summarized below occurred prior to the substantial measures undertaken by the Commandant of the Marine Corps since March 2017. These cases encompass different types of misconduct addressed under or through the UCMJ and are summarized below. Each case is evaluated independently, based on the unique facts and circumstances of that individual case.
13 March 2018, Special Courts-Martial Cases Involving Intimate Damages to Date.
Of interest to military justice practitioners is a new grant of certiorari at the U. S. Supreme Court today. SCOTUSBlog reports:
Issues: Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error.
As we see frequently, texts and messages on cellphones can be important evidence in a case. Most of the time the MCIO’s merely got the CW to provide a screenshot and otherwise cherry-pick what they want to take as evidence in the beginning. Of course the cherry-picking is in favor of the CW and they ignore what might be Brady-plus material. True, I’m starting to see more MCIO’s do a Cellbrite extraction, which is good.
United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.
Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”
In late summer 2014, my client and another were accused of conspiring with each other and committing sexual assaults on a single complaining witness. The events were alleged to have happened at a party at a local hotel. As the investigation progressed six others were implicated in an alleged group sexual assault.
My client and his alleged co-conspirator had charges preferred in January 2016 and in April they were arraigned at a general court-martial. We then experienced many delays because of funding issues until trial in February 2018. Over the months, the six others had their allegations resolved at summary court-martial, nonjudicial punishment, and administrative separation—all for offenses collateral to the alleged sexual assaults.
As our investigation and preparation progressed we were able to develop what we believed to be a motive to fabricate a false allegation of sexual assault, for what psychologists call secondary gain (to police and lawyers that’s called motive). The complaining witness was in trouble: she’d lied to command personnel about where she was going that day, and like the eight accused’s she violated various rules of alcohol and fraternization–she and others were about to undergo a surprise breathalyzer that night. Her answer was to claim sexual assault for what we believed to be consensual group sex.
Let’s take a look at United States v. Criswell, a case decided by the Army adverse to the appellant, and now pending review at CAAF, on the following issue.
No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. 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 MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.