E. Samuel, An Historical Account of the British Army: And of the Law Military, as Declared by the Ancient and Modern Statutes, and Articles of War for Its Government with a Free Commentary on the Mutiny Act, and the Rules and Articles of War; Illustrated by Various Decisions of Courts Martial, (1816).
There are two items from Canada that are worth the read.
Marie Deschamps, C.C. Ad.E., External Review Authority, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015.
Under the standard articulated by Criminal Code and the Supreme Court of Canada, genuine consent may be communicated by word or conduct. However, where either party indicates by any means—verbal or not—that he or she is uncomfortable or reluctant to continue with the sexual activity, an obligation crystallizes on the other party to specifically obtain consent before proceeding any further. While the Court did not explicitly require that this consent be verbal, as a practical matter where there is doubt as to whether or not a party has consented to sexual activity, the only clear way to dispel such doubt will be to verbally seek consent.
No. 15-0330/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE.
The decision of the Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to that court for reconsideration in light of United States v.Gutierrez, 74 M.J. 61 (C.A.A.F. 2015).
The Washington Post has a report today:
The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.
Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.
Under the “old” Article 32, the right to call and examine witnesses and to obtain production (discovery) of evidence was pretty robust.
All Services except the Air Force and Coast Guard routinely recorded the audio of the hearing. That audio could then be transcribed into a verbatim transcript. The benefit to the government was that in the event a witness became unavailable at trial, there existed a “deposition,” or at least something akin to a deposition which could be used in evidence at trial in the extreme case.
The Article 32 testimony as substitute for the actual appearance of the witness is guided by United States v. Norris, 16 U.S.C.M.A. 574, 37 C.M.R. 194 (to be admissible, must be verbatim); United States v. Burrow, 16 U.S.C.M.A. 94, 36 C.M.R. 250; Pointer v. Texas, 380 U.S. 400 (1965)(testimony might be received only if “taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Id., at page 407.
On today’s CAAF daily journal we find:
No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:
[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.
United States v. Herrera, __ F.3d ___ (10th Cir. 2015).
Marquette University Law School will host oral arguments for the court martial appeal of a U.S. Air Force sergeant accused of sexually assaulting two girls and endangering his baby son.
So says the Wisconsin Bar Journal.
Here is an link to a preview by a colleague.
The question is often asked of me–can we win on appeal, will the appellate courts give a fair hearing and review.
In United States v. Soto, the Air Force Court of Criminal Appeals (AFCCA) reviewed the factual sufficiency of appellant’s conviction for rape and any lesser included offenses.
A sophisticated employer knows how to interpret the numbers and language in the DD214. The codes are easily findable on the internet. This creates an issue with coding for early separation due to draw-down measures. So the following came over the transom.
DD 214 SEPARATION PROGRAM DESIGNATOR NARRATIVE
The DD Form 214, which is issued to all servicemembers upon discharge from military service, includes the discharge status (honorable, other than honorable, etc.) as well as a Separation Program Designator code and narrative reason for the separation, such as Force Shaping (Board Selected), Reduction in Force, Insufficient Retainability (Economic Reasons), or Early Retirement.
Court-Martial Trial Practice Blog
