Articles Posted in Up Periscope

Do I have a felony is a frequent question to which the answer is – maybe.  Of course the questioner is interested in the collateral effect of a special or general court-martial conviction.  This becomes particularly important if you continue to commit crimes after release from the brig and the military.

Are courts-martial courts under the Armed Career Career Criminal Act – yes says The Fourth, as do The Ninth and The Seventh.

Pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and section 4B1.4 of the Guidelines, an individual who violates § 922(g) and has “three previous convictions by any court referred to in section 922(g)(1) . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another” qualifies as an armed career criminal. 18 U.S.C. § 924(e)(1) (emphasis added).

Did he go AWOL?

In June 2012, Michael Hastings (of GEN McCrystal “fame”) appears to have made that suggestion in a lengthy piece published by Rolling Stone.

The mother and father sit at the kitchen table in their Idaho farmhouse, watching their son on YouTube plead for his life. The Taliban captured 26-year-old Bowe Bergdahl almost three years ago, on June 30th, 2009, and since that day, his parents, Jani and Bob, have had no contact with him. Like the rest of the world, their lone glimpses of Bowe – the only American prisoner of war left in either Iraq or Afghanistan – have come through a series of propaganda videos, filmed while he’s been in captivity.

Real and to be expected-a natural consequence of how Congress and perhaps leadership is approaching the real and very important issue of preventing sexual assault?

Military.com reports, In Survey, Lackland DIs Rip Leaders, Fear Recruits, 29 May 2014.

A survey of basic-training instructors conducted during the worst sex scandal in Air Force history revealed a sharp distrust of senior commanders at Joint Base San Antonio-Lackland and a widespread fear of recruits.

What are the full limits of confrontation when it comes to scientific and expert testimony.

Federal evidence blog notes:

In denying certiorari review (this week0  in eleven cases raising Confrontation Clause and expert testimony issues, for the foreseeable future the Supreme Court will not resolve a significant issue that has been dividing the lower court; it remains to be seen when the guidance urged by the lower courts will be provided.

By regulation (the U.S. Navy Regulations and the Navy’s Standard Organization and Regulations Manual (SORM), OPNAVINST 3120.32x,), the Navy required personnel to report having been arrested or prosecutions for criminal acts by civilian authorities.

In United States v. Serianne68 M.J.580 (N.M.Ct.Crim.App. 2009), aff’d69 M.J. 8 (C.A.A.F. 2010). the courts found the order unlawful, in violation of a members right against self-incrimination under the Fifth Amendment, U.S. Constitution.

In response to Serianne, the Navy issued a new order (ALNAV 049/10 dtd 21 Jul 2010; NAVADMIN 373/11, 08 December 2011.7

You are an enlisted person.

1.  You are reduced at Art. 15 from E-6 to E-5, you retire as an E-5.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980.

2.  You are reduced at special court-martial from E-9 to E-6, you retire.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980.

3.  You are reduced at special court-martial from E-7 to E-4, you have sufficient time and you are re-promoted and serve in grade as an E-6 at the time you retire.  What rank is your retirement check based on and how is it calculated.  Assume you came on active duty after 1 September 1980. Continue reading →

Senator Gillibrand is not happy.

Here is one of her unsubstantiated complaints.  I am quite sure that some of those committing sex offenses have done so before, and with predatory behavior.  But casting the vast majority of he said/she said cases as predatory men assaulting angelic waifs who can’t care for themselves is sexist and engaging in gender politics.

“More reporting is not the end game,” Gillibrand said. “Justice and removing recidivist predators from the military so they cannot commit more crimes to arrest the problem is the end game.

Human lie detector’s not admissible, still, a strong circuit trend.  This is consistent with military appellate case law.

With expert testimony admitted on a wide range of issues under FRE 702, what limits are there to expert testimony on the credibility of the defendant? As noted by the Tenth Circuit, a consensus in disallowing this expert testimony has emerged among the circuits; plain error resulted from the admission of this expert testimony requiring reversal of the conviction, inUnited States v. Hill, _ F.3d _ (10th Cir. April 28, 2014) (No. 12-5154)

One area of expertise may involve determining whether a witness is credible. Certain specialized training and techniques have been developed to gauge the credibility of a witness during an interview. While this expertise may be useful and employed during an interview, it is generally inadmissible at trial under FRE 702. The Tenth Circuit reviewed and reinforced its exclusion of such expert testimony, finding such exclusion the practice of other circuits as well. While there was no objection lodged at trial to the expert testimony, the circuit found the admission of this expert testimony constituted plain error.

Congress continues to tinker, rather than take a complete overview and make rational change to the UCMJ – the politics continue.  Meanwhile, we have to deal with the gruel they dish out.

So, keep an eye on any changes to the statute of limitations for various sex related offenses.  AND, keep an eye on any potential increases to punishments.

In Stogner v. California, 539 U.S. 607 (2003), the United States Supreme Court held that California’s retroactive extension of the statute of limitations for sexual offenses committed against minors was an unconstitutional ex post facto law. This is interesting because this would seem to apply to the California statute, if the offense has a short statute of limitations.  In particular, the Court found the California law proscribed by two categories of laws designated as ex post facto in Calder v. Bull, 3 U.S. 386 (1798):

There appear to be ten fairly consistent reasons for a wrongful conviction, according to a NIJ researcher.

In his series of pods Dr. Gould discusses the reasons (transcripts are available at the pod).

I often, always, talk about confirmation bias in connection with military sexual assault investigations, through the 32, and through the referral process, and potentially at trial. Dr. Gould calls it “tunnel vision.”  In another portion of the pod Dr. Gould addresses discovery failures.