Court-Martial Trial Practice

We often have cases where medical records, mental health records, and other similarly protected records need to be provided to a TC for fowarding to the MJ for an in-camera review.

If the TC already has the records and has reviewed them, the proper approach is that the defense gets a copy of everything the TC has seen -that’s an Article 46 issue.

But, if done correctly, the records are received by the TC sealed.  But therein lies the problem.  How the records are sealed (or not sealed) can be problematic.

Another tragic tale of tears fed by OSI lies.

HONOR AND DECEPTION: A secretive Air Force program recruits academy students to inform on fellow cadets and disavows them afterward

Here’s a report about Australian military justice.

http://www.theage.com.au/comment/adf-aint-broke-dont-fix-it-20131128-2ycru.html

Unlike the US, since Solorio, the Australians defer most criminal prosecutions to the civilian courts, and they focus on true disciplinary problems.  If nothing else they get cheaper military justice.  I seem to recollect GEN Ordierno estimating $116M to stand up a MJ system that it appears Congress will soon impose.

Here is the new Army policy on Army personnel convicted of a sex offense and who don’t get a punitive discharge.

ARMY DIRECTIVE 2013-21.pdf

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Those of us who deal with them know that crime labs are not infallible.  That’s because they are staffed with people.  Here is an ongoing issue that’s coming to some intermediate resolution.

http://www.npr.org/blogs/thetwo-way/2013/11/22/246739071/chemist-pleads-guilty-in-massachusetts-crime-lab-scandal

Remember USACIL.

Now here is something useful for the policy makers, and by extension defense counsel.

Center for Prosecutor Integrity to Establish ‘Registry of Prosecutorial Misconduct’

The Army will soon begin mandatory discharge processing for any Soldier or officer convicted of a sexual assault.  There is no bar to how far they will go back in the persons career, and also it appears it will not matter if the person was allowed to reenlist.

Separation proceedings for the soldiers will be started regardless of the date of their conviction for the sex offense, according to the directive.

 

CrimLawProfBlog brings a link to a summary of last year’s criminal law cases at the Supremes.

The Supreme Court 2012 Term was one in which the Court tackled several of the most critical issues that arise in our criminal justice system. Perhaps most importantly, as the 50th Anniversary of the Court’s decision in Gideon v. Wainwright approached, Court addressed the problems presented by counsel who had not provided the effective assistance of counsel during the plea bargaining process. Whereas it was common knowledge that the vast majority of cases in the criminal courts of this country are resolved by plea bargaining, the Court had never required that court-appointed counsel provide competent advice when recommending rejection of a plea offer by the prosecution. It had not even been constitutionally required that counsel communicate to his client the existence of an offer that entailed a reduced sentence were the defendant to plead guilty. The Court also addressed the matter of what action by counsel would constitute abandonment of the client in the post-conviction phase of a case where the client had received the death penalty. And, finally, the Court considered what had remained an unresolved issue: was it constitutional to impose a sentence of life without parole for a juvenile who had been convicted of murder. This article provides analysis of the Court’s handling of these four critical issues.

Just the other day AFCCA had the IAC issue for consideration.  See United States v. Gerdes,  ACM S32091 (A.F. Ct. Crim. App. 14 Nov. 2013)(unpub.).

A little off topic, but still a useful reminder for drug or DUI cases in the military.

From the L.A. Times:

Crime lab officials said the “human error” occurred over nearly five months and led to mistakes in the forensic examination of blood alcohol content. But they insist the miscalculations were so few that they affect only about 200 cases. As few as 20 people could see their blood alcohol test levels drop below 0.08%, California’s legal definition of DUI impairment.

The aftermath of Tailhook is well documented, as is the connection to potential fallout to the innocent.  See Kingsley R. Browne, Military Sex Scandals from Tailhook to the Present:  The Cure Can Be Worse Than The Disease, 14 DUKE L. J. GENDER & POL. 749 (2007).

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1128&context=djglp