Court-Martial Trial Practice

Deborah Tuerkheimer, Science-Dependent Prosecution and the Problem of Epistemic Contingency:  A Study of Shaken Baby Syndrome, 62 ALABAMA L. REV. 513 (2011).

With rare exception, SBS prosecutions rest entirely on the testimony of medical experts.

The construction of crime in this manner is rather extraordinary, particularly since— as a general proposition—scientific understandings develop over time.  In the specific context of SBS, dramatic changes have occurred since the 1990s, when the prosecution template emerged.  While forensic claims on this area remain highly contested, the science underlying SBS has decisively evolved. By this, I mean both that the evidentiary basis for SBS has been effectively challenged18 and—notwithstanding outstanding points of dispute—that large and highly significant areas of consensus surrounding SBS have shifted.  Three areas of changed consensus are, from a criminal justice perspective, of critical importance.

On 21 October 2008 the NMCCA decided and affirmed in United States v. Burleson, 2008 CCA LEXIS 386.  In the original case he was sentenced to: The appellant was sentenced to 20 years confinement, total forfeitures, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

On 18 May 2010, CAAF reversed in part and sent the case back to NMCCA for sentence reassessment or a rehearing.  Apparently NMCCA sent the case back for a rehearing.

On further consideration of the granted issue (68 M.J. 163) in light of United States v. Jones, 68 M.J. 465, 2010 CAAF LEXIS 393 (C.A.A.F. 2010), we hold that indecent assault under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), is not a lesser included offense of rape under Article 120, UCMJ, 10 U.S.C. § 920 (2006).

On concurringopinions blog Daniel Solove, flogs his new book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (Yale University Press, May 2011).

This book grows out of an essay I wrote a few years ago about the Nothing-to-Hide Argument.   The essay’s popularity surprised me and made me realize that there is a hunger out there for discussions about the arguments made in the debate between privacy and security.

The primary focus of NOTHING TO HIDE is on critiquing common pro-security arguments.  I’ve given them nifty names such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument,” among others.  I also discuss concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.

Here is another Fasler trailer.  Until Fasler is resolved the prosecution should be pleading in accordance with the issue in Fasler – what’s the harm – it’s a few extra words.

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS INMEDINA, MILLER, AND JONES.

What do you do, if anything, if your client confesses to a crime for which he is not charged, but someone else is, or where someone else has already been convicted.  Not a common practice in the military, or is it.  What about the multi-accused drug case for example?

Here’s an interesting article about the potential ethics of that “problem.”  Professor Coline Miller posts about:  Jean Fleming Powers’ Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?

Professor Miller concludes that there is a reason to avoid the client-attorney privilege in such a case if there is (substantial?) harm to the other client.  Based on his argument his point is limited to the convicted person, not the one on trial and not yet convicted.

Army Times reports that:  The intelligence analyst suspected of illegally passing government secrets to the WikiLeaks website has been found competent to stand trial, the Army said Friday.  And of course the Daily News reports he’s no longer in “solitary.”

Law.com has this interesting piece about the “struggle” courts have with searches of smartphones.  Bottom line, the tenor of the article is that search and seizure law hasn’t kept up with technology.  There are many ways the courts have kept up with technology changes and the ability to store, carry, and retrieve digital information.  However, the courts really haven’t kept up with how the amount of stored information and its scope has expanded exponentially.  Perhaps one day they’ll reach a balance.  A smartphone isn’t really like a letter, or a glove-box, or a briefcase.

Enjoy, and don’t forget to set a password to access your phone.  Yes, it requires a couple of extra inputs to use the phone.  But a password does more to protect the information on that phone.

In United States v. Arriaga, CAAF holds that housebreaking is an LIO of burglary (an alternate argument was that even if the HB was an LIO, they MJ erred in instructing on the offense because it wasn’t raised by the evidence), and that appellant was denied a “speedy” post-trial review.

The post-trial delay arguments raised in this case compel a brief review of this court’s recent appellate delay decisions before we turn to an analysis of the delay in Arriaga’s case.

Arriaga’s court-martial was completed on August 28, 2008.  It took the court reporter eighty-two days to complete the record of trial. It then took trial counsel eighty days to authenticate the record of trial (162 days after trial). It took the military judge twenty-five days to authenticate the record of trial (187 days after trial). The convening authority took his action twenty-six days later, 243 days after trial.

In United States v. Gubitosi, the Appellant was convicted of one specification of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice (UCMJ); one specification of drunken operation of a vehicle, in violation of Article 111, UCMJ; and one specification of underage drinking, one specification of using a false military identification card, and one specification of fleeing the scene of an accident, all in violation of Article 134, UCMJ.

The sole issue on appeal is:

Appellant’s plea to fleeing the scene of an accident was improvident as the military judge failed to elicit a sufficient factual basis regarding whether Appellant knew his act was wrongful in support of his plea.

Navy Times reports:  The former executive officer of a Mayport, Fla.-based destroyer pleaded not guilty to multiple counts of assault, wrongful sexual contact and other charges during an arraignment Wednesday at Naval Station Mayport, according to Naval Surface Force Atlantic.

Prior links here and here.

Military.com reports:

The commander of a guided-missile destroyer has been relieved of command while the Navy investigates allegations of misconduct.

The San Diego-based Third Fleet says Cmdr. Jay Wylie of the USS Momsen was relieved Wednesday due to “loss of confidence in his ability to command.” He was reassigned to a San Diego post.