Court-Martial Trial Practice Blog

Possession of CP and child sexual abuse are the same?

March 29, 2010 | The Law Office of Philip D. Cave

Carissa Byrne Hessick, Disentangling CP from Child Sex Abuse, 88 Washington L. Rev. __ (2010).

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.

February Army Lawyer

March 29, 2010 | The Law Office of Philip D. Cave

Here are the military justice related articles in the new Army Lawyer.

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial

SEAL case update

March 28, 2010 | The Law Office of Philip D. Cave

Kate Wiltrout of Virginia Pilot reports that:

Prosecutors handling the courts-martial of two local Navy SEALs charged with not stopping a teammate’s alleged assault on an Iraqi detainee faced another setback Friday.

Cmdr. Tierney Carlos agreed to exclude a statement made by one of the SEALs to the special agent investigating the allegations in September because the agent didn’t advise him of his right to remain silent. As a result, one of two charges against Petty Officer 2nd Class Jonathan Keefe likely will be dropped.

Up periscope WE 270310

March 27, 2010 | The Law Office of Philip D. Cave

Sentencing Law & Policy reports:

This remarkable local story out of Montana, which is headlined "Man blames PTSD for child pornography downloads," reports on another notable sentence break given to a notable child porn offense. Here are the details, which spotlight many of the hottest issues in current federal sentencing debates:

An Iraq war veteran in Helena, who claimed that post-traumatic stress disorder contributed to his viewing child pornography, was sentenced Tuesday to two years in federal prison, to be followed by 10 years of supervised probation.

Extraterritoriality

March 26, 2010 | The Law Office of Philip D. Cave

I posted the other day about an 11th Circuit decision on extra-territoriality of 18 U. S. Code 2251A. Here is an article, courtesy of CrimProfBlog that may be of some interest on that subject.

Jeffrey A. Meyer (Quinnipiac University – School of Law) has posted Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law (Minnesota Law Review, Forthcoming) on SSRN.

Scores of federal criminal and civil statutes are “geoambiguous” – they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly recites a “presumption against extraterritoriality” but just as often overlooks it and opts to apply geoambiguous law abroad. The Court’s inconsistency bespeaks a deep divide among scholars. Judicial unilateralists favor liberally imposing U.S. law abroad to respond to unwanted effects from foreign conduct. Judicial territorialists favor restraint and a return to traditional territoriality to avoid international conflict. And judicial interests-balancers favor multi-factored, case-by-case consideration of whether it is “reasonable” to apply geoambiguous law abroad.
This Article advances a new approach – a proposed rule of “dual illegality” to govern how courts apply geoambiguous laws. Under a dual illegality rule, U.S. courts should decline to apply geoambiguous laws to penalize or regulate conduct that occurs in the territory of a foreign state unless the same conduct is also illegal or similarly regulated by the law of the foreign territorial state. A similar rule of dual illegality has worked for many decades as a limitation in countless criminal extradition treaties. A dual illegality rule would revitalize traditional territoriality values as a limiting principle on U.S. assertion of its law abroad, while also allowing extraterritoriality when there is the least likelihood of provoking political dispute. The response to greater globalization should be less jurisdictional contestability and more reliance on rules that do not invite judges – as the rules wrongly do now – to engage in policy-like assessments of the needs or interests of the United States in having its law applied to activity abroad. Courts should apply a dual illegality rule to decide the scope of geoambiguous law.

Crime Labs

March 26, 2010 | The Law Office of Philip D. Cave

I’ve posted before about issues with forensic testing and police controlled laboratories (including military drug testing laboratories). Here is an article from my old crim law professor, a former Army JA. You’ve also heard me frequently talk about confirmatory bias in regard to police investigations and other investigations.

Paul C. Gianelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, to be published in the Utah Law Review.

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 2002, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s recommendation. It also examines the counter arguments as well as alternative approaches, including additional measures that should protect forensic analyses from improper influence.

Evidence notes

March 26, 2010 | The Law Office of Philip D. Cave

Thanks to Federal Evidence Review for a good summary of cases and issues involving 404(b) issues in federal courts.

Another retiree recall – ?

March 25, 2010 | The Law Office of Philip D. Cave

New York Times reports:

The former military surgeon and Medtronic consultant accused of falsifying research about the benefits of a bone-growth product used on soldiers injured in Iraq is now under investigation for a possible court-martial, officials at the Walter Reed Army Medical Center said Wednesday. The investigation will determine if there is sufficient evidence to call the surgeon, Dr. Timothy R. Kuklo, back to active duty to face court-martial charges.

Update on the rapper

March 24, 2010 | The Law Office of Philip D. Cave

FoxNews reports that:

Hall, a soldier out of Fort Stewart in Georgia, recorded a rap song last July called “Stop Loss” after he was notified that his military contract was being extended. Army soldiers who are “stop-lossed” must complete additional tours of duty.

In his song, Hall raps about walking up to soldiers and “surprising them all” with 30 rounds set to a “three-round burst.” Another lyric says: “Still against the war / I grab my M4/ Spray and watch all the bodies hit the floor/ I bet you’ll never stop-loss nobody no more.”

Does 18 U.S. Code 2251A apply extraterritorially

March 24, 2010 | The Law Office of Philip D. Cave

Thanks to OpinoJuris for pointing us to the 11th Circuit decision in United States v. Frank. You will recollect that CAAF has found that the CP related statutes don’t apply overseas. Here is part of the OJ summary.

The Eleventh Circuit upheld the conviction finding that (1) Miranda warnings were unnecessary; (2) the statute applied extraterritorially; and (3) the “purchase” of a child may occur through payment directly to the child, rather than a third party.

The Court found that generally, “statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.” The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. That is, our “Constitution cannot compel such specific, affirmative action by foreign sovereigns.” Moreover, the joint venture exception does not apply because American officials did not know of Frank’s presence in Cambodia until after he was arrested and did not participate in Frank’s detention or interrogation.