| Out of Focus: Expanding the Definition of Child Pornography in the Military |
|
| The Code Indicted: Why the Time is Right to Implement a Grand Jury Proceeding in the Military |
|
The Army Court of Criminal Appeals has an interesting opinion and reminder about the relationship of improper relationships when there is an allegation of sexual assault.
United States v. Delgado, ARMY 20140927 (A. Ct. Crim. App. 6 January 2016).
AR 600-20, para. 4-14b. prohibits relationships between soldiers of different ranks if they:
Is this agent still investigating? Does this agent have any pending investigations or appearance as a witness in a UCMJ case?
A man arrested just before Christmas for allegedly pulling out his gun at a restaurant because he didn’t like the bill is a Special Agent for the U.S. Army’s Criminal Investigation Division.
Curtiss Davis is also accused of exposing himself to a female employee and demanding a sex act.
Thus begins a review of the Military Justice Review Group (MJRG) report Part 1. My comments will be in no particular order.
Confinement to Bread & Water
Currently, a person can be confined for up to three days on bread and water rations, under certain circumstances. The MJRG recommends removing this as a punishment. They do not say why, other than to suggest that:
The pretrial appellate litigation in Bergdahl is effectively over–charges are referred to trial and he has been arraigned.
For those interested in the litigation to get access to UCMJ art. 32 hearing documents, I have collated the documents here.
There is a new effort to get quicker media access to trial documents from the Hearst Corporation. See, Diego Ibarguen/COL Nance, MJ, ltr of 4 Jan 2016.
We are all familiar with the interactions that can occur between the military and civilian prosecutors when deciding who will prosecute a servicemember for crimes in the “civilian” community. Sometimes the result is a civilian prosecution and the military takes adverse administrative actions, sometimes the civilians hand over the case to the military, and sometimes both proceed. Here is an interesting news item from Washington State.
A former soldier accused of murdering his wife can’t get a fair trial because the Pierce County Prosecutor’s Office gave confidential police records to the Army as part of a “scheme” to help the military discharge him, a defense attorney alleged in court Monday.
That argument failed to persuade Superior Court Judge Jack Nevin to halt the prosecution of the former Spc. Skylar Nemetz, but it opened a window on how Pierce County and Joint Base Lewis-McChord decide how to hold soldiers accountable for offenses committed in civilian communities.
The interesting case of West v. Rieth, et. al. has come across the transom and it’s worth the read.
West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.[4]
At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false.
One of the discussions ongoing about military sexual assault cases is the breadth of conduct meant to capture, and potential ambiguities in how the law seeks to define a crime versus boorish or otherwise inappropriate behavior. Here is an interesting piece based on developments in Canada.
Implied Consent & Sexual Assault: Introduction, Michael Plaxton, University of Saskatchewan – College of Law, November 27, 2015
Introductory Excerpt from Implied Consent and Sexual Assault: Sexual Autonomy, Intimate Relationships, and Voice (McGill-Queen’s University Press, 2015) (Forthcoming).
There has been much talk in the military justice community about prosecutor ethics and how they may clash with the commander and Congressional desires to prosecute and convict those accused of sexual assault. It is difficult to decide if pressure (proper or otherwise) leads prosecutors to err, or whether it is inexperience or just a desire to improve their scoreboard. The authors below touch on an interesting view of how prosecutors are “involved” in wrongful convictions.
Kay L. Levine and Ronald F. Wright (Emory University School of Law and Wake Forest University – School of Law) have posted Prosecutor Risk, Maturation, and Wrongful Conviction Practice (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:
In this article we rethink the connection between prosecutorial experience and conviction psychology that undergirds much of the academic literature about wrongful convictions. The conviction psychology account of prosecutorial behavior asserts that prosecutorial susceptibility to cognitive biases deepens over time, thereby increasing the risk that prosecutors will become involved in wrongful convictions the longer they stay in the profession.
Kyndra C. Cleveland , Jodi Quas and Thomas D. Lyon (University of California, Irvine , University of California, Irvine – Department of Criminology, Law and Society and University of Southern California – Gould School of Law) have posted Valence, Implicated Actor, and Children’s Acquiescence to False Suggestions (Forthcoming, Journal of Applied Developmental Psychology) on SSRN. Here is the abstract:
Although adverse effects of suggestive interviewing on children’s accuracy are well documented, it remains unclear as to whether these effects vary depending on the valence of and the actor implicated in suggestions. In this study, 124 3-8-year-olds participated in a classroom activity and were later questioned about positive and negative false details. The interviewer provided positive reinforcement when children acquiesced to suggestions and negative feedback when they did not. Following reinforcement or feedback, young children were comparably suggestible for positive and negative details. With age, resistance to suggestions about negative details emerged first, followed by resistance to suggestions about positive details. Across age, more negative feedback was required to induce acquiescence to negative than positive false details. Finally, children were less willing to acquiesce when they (versus the confederate) were implicated. Findings highlight the interactive effects of valence and children’s age on their eyewitness performance in suggestive contexts.
Court-Martial Trial Practice Blog
