This report makes two key findings:
• There is not a systemic problem with the initial disposition authority’s decision either to prefer a penetrative sexual offense charge or to take no action against the subject for that offense. In 94.0% and 98.5% of cases
reviewed, respectively, those decisions were reasonable.
I do NOT receive anything from Lexis, nor do the others listed.
The Court remanded United States v. Cabrera to NMCCA for additional review based on claims that the military judge should have been recused and that trial and appellate defense counsel were IAC for not raising that at trial or before NMCCA.
The initial NMCCA opinion. In that opinion the only issues raised were a double jeopardy claim and a failure to state an offense claim. However, the interesting issues now are:
DID LTCOL KASPYRZK’S SUBSTANTIVE PARTICIPATION INAPPELLANT’S CASE WHILE SIMULTANEOUS LY ALLEGEDLYAPPLYING FOR EMPLOYMENT TO SERVE AS THE PROSECUTION’S EXPERT ADVISOR UNDERMINE THE PUBLIC’S CONFIDENCE IN THE JUDICIAL PROCESS?
18 U.S.C. § 1385—Posse Comitatus Act.
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
10 U.S.C. § 252—(Insurrection Act) Use of militia and armed forces to enforce Federal authority.
This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241, challenging Petitioner’s conviction by general court-martial. At the time of filing, Petitioner was confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. This matter is before the Court on Respondent’s Motion to Dismiss (Doc. 10) in light of the Petitioner having received a Presidential Pardon. Petitioner has filed a Response (Doc. 13), and Respondent has filed a Reply (Doc. 14). The Court held a hearing on the motion on January 8, 2020, and took the matter under advisement. The Court, determining that Petitioner’s acceptance of the Pardon was an admission of his guilt leaving this matter without a case or controversy, finds that the motion should be granted.
Note the discussion of whether accepting an unconditional pardon not based on innocence is in fact and admission of guilt.
At least in the courtroom, we act hastily when we conclude that the decisions of prosecutors and jurors can be based on presumptively believing sexual assault complainants. On the contrary, the presumption of innocence and the government’s burden of proof beyond a reasonable doubt in all criminal cases remind us that jurors have an obligation to weigh the credibility of accusers carefully, and indeed that a defendant must be given leeway to cross examine alleged victims to establish that they may be mistaken in their memory of historical events, that they might have a motive to fabricate claims, or that their perception may have been clouded by alcohol or narcotics. All members of society must be conditioned to listen with care and compassion when complainants bring forth accusations of sexual assault, so that we do not apply subconscious stereotypes or biases to reflexively discredit them. But as the “Me Too” movement grows, it is also essential that bedrock protections for the accused are not eroded in a way that predetermines a defendant’s guilt.
Most rape cases are not “whodunits” where identity is an issue. They involve interactions between two or more people who are known to each other from previous interactions-so called “acquaintance rape” situations-where the issue is what happened, not by whom. Sexual assaults usually occur in private, it is rare that they are witnessed by third-parties, and alleged attacks often leave little medical evidence or physical injury. The determinative issues in these types of rape cases are the victim’s consent and the defendant’s mens rea. Where there are no injuries and the defense is either non-occurrence or consent, the credibility of the accuser is especially central to the jury’s verdict.
Cassidy, R. Michael, Character, Credibility and Rape Shield Rules (October 8, 2020). GEO. J. L. & PUB. POL’y, Legal Studies Research Paper No. 542, at 2-3. [[1]]
There is a report of SGT Hatley being released from prison after 11 years confinement.
The ACCA’s 2011 opinion is here.
An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit premeditated murder and premeditated murder, in violation of Articles 81 and 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 and 918. Appellant was acquitted of an additional offense of premeditated murder and obstruction of justice.
Wrestling with Legal and Illegal Orders in the Military in the Months Ahead
The Orders Project website is here along with a Sourcebook.
18 U.S.C. § 1385—Posse Comitatus Act.
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
10 U.S.C. § 252—(Insurrection Act) Use of militia and armed forces to enforce Federal authority.
Law enforcement officials and researchers caution that the registries play a limited role in preventing child sexual abuse and stress that most perpetrators are known to the child. The U.S. Department of Justice, which oversees the National Sex Offender Public Website, estimates that only about 10 percent of perpetrators of child sexual abuse are strangers to the child. The Justice Department estimates 60 percent of perpetrators are known to the child but are not family members but rather family friends, babysitters, child care providers and others, and 30 percent of child victims are abused by family members. Nearly a quarter of the abusers are under the age of 18, the department estimates.
Court-Martial Trial Practice Blog
