Court-Martial Trial Practice Blog

Prosecutors and wrongful convictions-WTR

January 1, 2016 | The Law Office of Philip D. Cave

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.

Coaching of child witnesses-WTR

January 1, 2016 | The Law Office of Philip D. Cave

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.

“How stories deceive” if we believe the storyteller.

January 1, 2016 | The Law Office of Philip D. Cave

It appears we are hard-wired to believe stories. So actually requiring us to believe isn’t that hard–except it seems in sexual assault cases. Everyone is aware that the military requires any sexual assault complainant to be believed. A cynic will say, that this is required despite evidence showing falsity in the complaint. A cynic could argue that there are orders not to investigate properly for fear of “victim-blaming.” There arevalid reasons why a sexual assault complaint should be handled properly and a complainant given appropriate care. But that does not mean an inadequate investigation should result, that a story should not be validated and that a false report not be challenged.

Maria Konnikova has an interesting piece in The New Yorker, from when part of my title comes from: How Stories Deceive, The NewYorker, 29 December 2015. On the surface the victims she presents gave a plausible story which the media and others grabbed on to.

“The media frenzy began right on cue. It was such an odd case, and everyone had a theory.”

Interrogation and False Confessions in Rape Cases

December 19, 2015 | The Law Office of Philip D. Cave

I have used the title of a new paper by Prof. Richard Leo.

Of the 1,705 post-conviction DNA and non-DNA exonerations that have occurred from 1989 to the end of 2015, approximately 13 percent of these wrongful convictions were due to false confessions, and virtually all of these occurred in either homicide or rape cases. This chapter discusses why false confessions occur and discusses the ways that law enforcement training can be modified to avoid false confessions. False confessions primarily occur due to a lack of proper training, poor investigative practices, and the use of scientifically invalidated and/or high risk interrogation techniques and strategies. To safeguard against false confessions, the author argues that investigators should receive training on the following topics: 1) the existence, variety, causes and psychology of false confessions; 2) the indicia of reliable and unreliable statements and how to distinguish between them; 3) the need to obtain corroborating evidence to verify suspects’ confessions; and 4) avoidance of inadvertent contamination of interrogations by disclosure of non-public case facts to suspects.

Leo, Richard A., Interrogation and False Confessions in Rape Cases (December 2015). in Robert Hazelwood and Ann Burgess, eds., PRACTICAL ASPECTS OF RAPE INVESTIGATION: A MULTIDISCIPLINARY APPROACH (CRC Press, 5th ed., 2016 Forthcoming); Univ. of San Francisco Law Research Paper . Available at SSRN: http://ssrn.com/abstract=2700410

Pardons and clemency

December 18, 2015 | The Law Office of Philip D. Cave

The news today is of President Obama’s 18 December 2015 pardons and clemency actions.

Of the many, a quick look does not show any from court-martial convicted applicants.

Pardon Attorney.

Neglecting the rights of an accused–WTR

December 12, 2015 | The Law Office of Philip D. Cave

We are all familiar of Congressional and command efforts to address military sexual assaults. Many of the revisions to the UCMJ and the MCM flowing from these efforts are appropriate, reasonable, or meaningless.

However, what does appear consistent is the failure of Congress to recognize that it has a concomitant duty to the accused to ensure that his trial is fair both in procedure and substance. Unlike the congressional committees on the judiciary, the committees on the armed services have a more direct and at times intrusive influence on the military judicial system once enacted. For example, the controls the Congress has on United States Attorneys (USA) and federal judges are much more limited than the direct and palpable influence of Congress on the commanders, prosecutors, and judges in the military justice system. We are all aware of the perceptional punitive actions taken against two senior Air Force commanders for decisions in sexual assault cases, the results of which certain members of Congress disliked. This is because military participants in the military justice system are subject to Congressional control over their promotions and in some cases their duty assignments. Not so the USA.

The concern, of course, is the potential for false accusations of sexual assault and congressional hands-on interference in an effort to prejudge and require convictions regardless of the complaints merit. That may seem to be hyperbole on my part, but that is very clearly my perception and the perception of many others who are involved in the system on a daily basis. I have said before that the failure to address the potential for false accusations harms actual victims, the accused, the accused’s wife, the accused’s children, and military unit morale.

Schloff v. United States–petition filed.

December 12, 2015 | The Law Office of Philip D. Cave

Here is the petition for a writ of certiorari to the United States Supreme Court in:

Schloff v. United States.

The CAAF opinion is here.

Bergdahl and Serial Season 2

December 10, 2015 | The Law Office of Philip D. Cave

NBC reports that SGT B. Bergdahl is the subject of the second Season, and the first pod is available today.

http://www.nbcnews.com/storyline/bowe-bergdahl-released/serial-season-2-debuts-bowe-bergdahl-telling-desertion-story-n477596

The popular podcast “Serial” launched its second season Thursday, shining a spotlight on the mysterious disappearance of U.S. Army Sgt. Bowe Berghdahl — and allowing him to be heard publicly for the first time since he was freed by the Taliban in May 2014.

Put pen to paper, or tap a few keys

December 9, 2015 | The Law Office of Philip D. Cave

It’s called a pen or keys on a computer keyboard–use one or two, or three, or . . . .

Senators demand transparency in US military justice system

These words are great. They should be acted upon. Senators ACT. Can you perhaps put something in the next NDAA or get some sort of exception to FOIA?

What do I say to you?

December 8, 2015 | The Law Office of Philip D. Cave

Stars & Stripes reports:

If I were Petraeus’s lawyer or your lawyer and got a similar result I’d be ecstatic, as would you be.

But the other part of me asks what I should tell you the young enlisted client, the NCO, the junior officer, the senior officer, in a similar situation. I fear you will not be so lucky. I’m not talking about the adultery here–that’s subject to the rule of de minimis non curat lex in my mind. But the mishandling of classified material for personal use?