The July 2010 issue of the Army Lawyer is available here.  And it’s a military justice wonk’s delight. 

Here’s a link to an article by CPT Robert E. Murdough called, “I Won’t Participate in an Illegal War”:  Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders.  The article doesn’t appear to mention LTC Lakin, but I’ll be reading it with his case partially in mind.

And here’s a link to an article by MAJ David Edward Coombs that has me gnashing my teeth.  It’s called,  United States v. Blazier:  So Exactly Who Needs an Invitation to the Dance?  Apparently just a surrogate expert, according to MAJ Coombs.

And here’s a link to an article by MAJ Patrick D. Pflaum (who I believe did it in the Conservatory with a lead pipe) about what he rightly calls CAAF’s “landmark” Jones decision, which I think was the most important decision of this term.

6 Responses to “Exciting new edition of the Army Lawyer”

  1. Anonymous says:

    Here are my questions:

    1. Raw data is still inputted by human beings. It is not some magical thing untouched by human hands. In fact, every issue at drug testing labs short of purposeful malfeasance will involve either problems with the raw data in (contamination) or problems with the raw data coming out (calibration of equipment/improper techniques). So the idea that if it’s raw data, it’s reliable and thus not subject to confrontation because it comes from machines, doesn’t ring true to me, am I the only one? I mean isn’t the whole reason to require at least one person from the lab to allow the defense to cross that person on their procedures?

    2. What good is the data without knowing whether or not it is accurate?

    3. If the rule is going to be, no cover memo (big whoop) and the expert can then testify about the results, with no knowledge of the general or specific procedures used, then you’d pretty much never have any issues uncovered.

    4. How is the data “tested through authentication” without actually calling someone who works at the place as a witness to authenticate it and if you are going to do that, then what’s the justification for saying no rgt to confrontation?

  2. Anon says:

    I thought Dr. Papa was the expert in Blazier and I think he does indeed work at the lab.

  3. Cloudesley Shovell says:

    One wonders if there was a Colonel Senf on faculty at the same time Major Pflaum was assigned as a Professor at the JAG School.

  4. Anonymous says:

    BZ to Maj Pflaum. I’ve always thought his articles manage to balance scholarship and utility to the practitioner nicely.

  5. Dew_Process says:

    With due respect, the article on Blazier is merely a regurgitation of the Government’s Brief and ignores substantial military precedent.

    Beginning in 1954, the then CMA in US v. Ford, 16 CMR 185 (CMA 1954), established the “procedure” in urinalysis cases to satisfy Confrontation Clause issues – the technician was called to lay the foundation, and the expert who did the actual comparative analysis testified as to the results.

    In 1975, the Army & AF produced a Joint Publication, “Military Criminal Law Evidence,” DA Pam 27-22; AF Pam 111-8, which in “checklist” form advised, consistent with Ford and its progeny, how Trial Counsel should “prove” the facts in drug cases without creating Confrontation Problems.

    Two events derailed this historical [but Constitutionally compliant] process. The first being Ohio v. Roberts’ change in “confrontation” analysis, which of course was rejected in Crawford.

    The second, and far more problematic issue (something that the government for whatever reasons simply refuses to address), is the fact that in promulgating MRE 803(6), simply tried to write out the Confrontation Clause in the Rule’s language. FRE 803 was drafted quite carefully to avoid Confrontation Clause issues, and if you complare the language of the two, you’ll see just how far afield MRE 803(6) is to its federal counterpart.

    And the reason was simple: ensure convictions. For the history of this see, Lederer, “The Military Rules of Evidence: Origins and Judicial Interpretation,” 130 Mil.L.Rev.1, 11 (1990).

    The record in Blazier amply shows that the prosecution, MJ and CCA all relied upon MRE 803(6), to justify their position.

    Finally, the article neglects to discuss one of the key issues remaining in Blazier: the scope and impact of the “made in anticipation of litigation” corollary to Confrontation, established in Palmer v. Hoffman, 318 U.S. 109 (1943). In Miller, 49 CMR 380 (CMA 1974), the Court applied it to drug case lab reports, holding them inadmissible under the “made in anticipation of litigation” concept.

    By Strangstalian, 7 MJ 225 (CMA 1979) however, over a vigorous dissent by Judge Perry, the Court retreated to a pure “reliability” approach, an issue that has not been squarely addressed by CAAF post Crawford’s rejection of Ohio v. Roberts’ “reliability” test.

    Judge Ryan has hinted at the issue in her concurring opinion in Harcrow, 66 MJ 154, at 161 (CAAF 2008)(Ryan,J., concurring).

    The fact that the CAAF issued a sweeping invitation for Amici Briefs shows the significance of Blazier – and the fact that it very well could end up on the SCOTUS docket.

    Sir Cloudesly: Are you referring to the Colonel Senf of the 1780 Battle of Camden involving Lord Cornwallis’s forces?

  6. Cloudesley Shovell says:

    Dew:

    But of course! He’s a bit after my time, but us really old guys must look out for one another.

    I was in no way making a sly German-English pun on the fact that Pflaum=Plum and Senf=Mustard. My favorite color is not magenta. How about a toast? It’s 4 pm somewhere!