Articles Posted in Worth the Read

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.

(cleaned up)

Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference.  Ah, but it continues to be a daily tool–for motions, briefs, and such.  I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.

One of the common questions is how best to quote, be it an appellate decision or a law journal.  Jack Metzler proposes a solution,  In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.

Those of us who engage with discharge reviews, correction boards, and federal court on behalf of service-members are used to reading about the presumption of regularity–it’s a regular defense by the gubmint to an applicants claim.

“I was improperly discharged.”

A: “We can’t find any record of your discharge.  Because of that we consider you properly discharged, because we presume the command did it right.  No, we can’t and don’t have to explain why there is no record of this.”

“An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.  This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.”  The accused has the burden to establish that the order is not lawful.  Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972).  Indeed, a professional military institution could not otherwise function without a service member having a duty to obey lawful orders.

 United States v. Kisala, 64 M.J. 50, 52, n.5 (C.A.A.F. 2006).

A piece at JustSecurity (WTR) begins:

We have a new book worth the read to litigators facing child assault allegations with Shaken Baby Syndrome “evidence.”

Randy Papetti, The Forensic Unreliability of the Shaken Baby Syndrome:  The Book.

Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome,now shipping from Academic Forensic Pathology International (coupon for $50 off).

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.

There was a time when the military allowed people to learn from their mistakes.  There were times that people were allowed to get away with “murder” under that philosophy.  So times changed, largely as a result of the “zero tolerance” of drug abuse.  So, more and more we have, it can be argued, reached a point of intolerance for error and no longer allowing people to benefit and learn from mistakes.

In this context, the comment on an USMA investigation is interesting.

USMA stands behind Cadet x, as it stands behind our young men and women who choose to become part of it at great personal expense in order to emerge on the other end as leaders of character,” the academy statement said. “These are leaders who are not immune from mistakes or their consequences but who are uniquely equipped to learn and grow from them.”

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the case, and ordered them to appear before him in person here at Guantánamo or by video feed next week.

At issue was Baker’s authority to excuse civilian, Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case of because of a secret ethics conflict involving attorney-client privilege. Also, the general refused a day earlier to either testify in front of Spath, or return the three lawyers to the case.

The annual cost of detaining federal prisoners before trial and after sentencing is significantly higher than the cost of supervision in the community, according to figures compiled by the Administrative Office of the U.S. Courts.

The annual cost of detaining federal prisoners before trial and after sentencing is significantly higher than the cost of supervision in the community, according to figures compiled by the Administrative Office of the U.S. Courts.

In fiscal year 2016, detaining an offender before trial and then incarcerating him post-conviction was roughly eight times more costly than supervising an offender in the community. Placing an offender in a residential reentry center was about seven times more costly than supervision.