Court-Martial Trial Practice Blog
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.
Have Briefcase (and
Internet), Will TravelFor a Free Consultation
Neglecting the rights of an accused–WTR
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.
Here is the petition for a writ of certiorari to the United States Supreme Court in:
The CAAF opinion is here.
Bergdahl and Serial Season 2
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
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?
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?
Interesting AFCCA comment on adultery
Although we question the prosecutorial judgment in charging adultery in conjunction with an instance of sexual assault, we find the evidence is legally and factually sufficient to sustain the conviction in this particular case. Article 66(c), UCMJ, 10 U.S.C. § 866(c).
United States v. Dockery, No. 38624, n. 1 (A.F. Ct. Crim. App. 2 December 2015).
The military’s charging of adultery along with sexual assault allegations has been the topic of some derision over the years. The reason for the charge is several-fold.
Interesting data?
In preparing the petition for Schloff, we looked to the amount of cases coming through the system related to prosecutions under UCMJ art. 120.
The Army is “reporting” about 60% of cases for last year were sexual assault/120 cases. We have not been able to gain similar “information” from the Air Force or Department of the Navy. Anyone know?
Private search of computers
How many times do we see the private search as an issue. The upset spouse searches the computer to find evidence of infidelity, the Sailor’s friend or roommate comes across contraband CP on a computer and looks further, etc., etc., etc.
A responsible law enforcer would take the information to get a search warrant or command search authorization. But that doesn’t always happen. What does happen is that the law enforcer or someone in command goes and looks for themselves. The question then becomes whether that is a search or is it a continuation of a private search. If a private searcher shows the law enforcer exactly what they saw and that alone, there may not be an unlawful search. But what happens if the law enforcer does more than strictly replicate what the private searcher did. So Orin Kerr has some information for us in the Washington Post.
[T]he 11th Circuit handed down a new computer search decision,United States v. Johnson, that both sharpens and deepens the circuit split on how the private search doctrine of the Fourth Amendment applies to computers. Johnson isn’t a likely candidate for Supreme Court review. But it does leave the private search doctrine in computer searches ripe for Supreme Court review in other cases working their way through the courts.
News of the Weird?
The Washington Post has an article by Orin Kerr on a report in the New York Times about a bill introduced in Congress to change or clarify the “mens rea” required in federal criminal statutes. I probably should not comment on where the proposal may have come from. It is proposed that:
§ 11. Default state of mind proof requirement in Federal criminal cases
If no state of mind is required by law for a Federal criminal offense—