Article 62 appeal on its way.

A bulk of the evidence in the case against the latest military training instructor to stand court-martial at Joint Base San Antonio-Lackland was obtained illegally, a military judge ruled today, putting the entire case in jeopardy.

10 Responses to “Up periscope”

  1. tsam says:

    This should be interesting.  Judge Eller is not a bleeding heart and knows his stuff.  The government might have a problem with this.

  2. Cloudesley Shovell says:

    Here’s my question:  Will Tech. Sgt. Ronda Roberts, USAF, who was identified by name in the San Antonio News Express article linked to by No Man in another post, be held accountable for her larceny of the cell phone in question? I note she testified under a grant of immunity in the motions session. 
    Yes, my question is rhetorical, I already know the answer.  Just curious of others’ opinions on the matter.

  3. k fischer says:

    No, she was a whistleblower.

  4. Cloudesley Shovell says:

    A thought experiment:  What crimes should a convening authority tolerate within his command under a whistleblower or prevention of greater harm theory?  Can one craft a set of rules in advance, or is it completely ad hoc, case-by-case, fact-dependent?  Should there be a rule that in all cases excuses larceny if the property is promptly turned over to law enforcement as evidence of a crime?  What if someone steals a cell phone thinking there is evidence of a crime,  but the true owner of the cell phone is actually completely innocent of any wrongdoing?  Does the motive excuse the crime?  If so, why the different outcome from the familiar “teach a lesson” larceny cases?  What if the crime uncovered by the larceny of the cell phone is minor or silly, or manifestly less consequential than larceny?  Can one servicemember steal another servicemember’s car to prevent the car owner from driving to a bar to drink underage using a fake ID?  Can one steal another’s car keys to prevent him from driving drunk? 
    Another question:  Can Tech. Sgt. Ronda Roberts, USAF, be held liable in a state court tort action?  What are the damages?  Should she be held liable, or should the state court free her from liability on a whistleblower or greater good theory?
    Other questions:  Is the accused still responsible for his cell phone bill?  Is he lying if he reports his phone stolen to the cell phone company?  When does the gov’t have to return his phone, if at all?
    I don’t think there’s one right answer that can fit all situations (I, for one, would happily take someone’s car keys to prevent drunk driving.)  This particular case, however, rubs me a little bit the wrong way.  There were all sorts of appropriate ways to report the accused for misconduct, and to seize and search his cell phone, all completely lawful, and all which should have been manifestly apparent to Tech. Sgt. Roberts as well as the law enforcement authorities involved in this case.  Why is it that law enforcement authorities will search high and low for reasons why they don’t need a search warrant when obtaining one is so simple?  They respond to incentives–if courts keep excusing failure to get warrants, law enforcement won’t bother. 

  5. k fischer says:

    Whistleblowers should always be protected…..unless they expose classified information, in which case  they should be thrown in jail pending trial for at least a year before they even get an Article 32.  The rights of the US Government to keep information private trumps the 4th Amendment rights of Wicks who is just a dirtbag who attempted to cheat on his girlfriend with some trainees. 
    But, to seriously answer your question, I think it would be very difficult to draft a set of rules in advance to provide a defense for a “greater good” larceny.  And it sounds like Roberts didn’t really consider that she was stealing the phone, as she was probably more upset that Wicks was trying to cheat on her.
    I think that’s why we must rely on prosecutorial discretion in these matters because I can understand why Manning is charged with a crime for what he did (I can’t understand the complete disregard to Article 10), but yet Roberts may not be charged with larceny.

  6. Cloudesley Shovell says:

    Yes, it really does depend on who you’re blowing the whistle on, doesn’t it?  Another iteration of the Golden Rule. 
    Hoping for more voices in the conversation, but perhaps this post just isn’t getting any attention anyway. 
    Were I the convening authority, the law enforcement people involved in this debacle would be answering some really hard questions.  Both Wicks and Roberts would be facing adverse action.  No way in the world do I want to encourage larceny in my command, no matter how pure the motive.  Barracks thieves do huge harm to unit good order and discipline and destroy trust amongst unit members.  I doubt Roberts has a shred of credibility with anyone in that training command.  They’re both toxic, and need to go.  This also demonstrates the need to prevent relationships between instructors.  I have little doubt Roberts stole the phone not for the benefit of the command, but for purely private motives–take Wicks down for cheating.
    Were I a judge in the theoretical civil suit, I’d award damages as well.  Larceny is larceny, and once you start picking and choosing what is good larceny v. what is bad larceny, you lose control of any objective standard and invite contempt for the law.   Too much prosecutorial discretion does the same thing.  It’s a problem that needs fixing, but by what remedy is a tough question.
    thanks for the conversation,

  7. SFC V says:

    Did she really commit larceny?  Did she have the requisite intent to steal?  I’m not sure she intended to permanently deprive the owner of the property.  At most you have a worngful appropriation of a value of $500 or less.

  8. k fischer says:

    I gotta differ with you on this one, good Sir.  I think using your discretion in reprimanding, prosecuting, or suing Roberts for theft off the phone could be considered reasonable.  But, change these facts to an abused live in  girlfriend whose boyfriend surreptitiously records on his phone the abuses he commits on her.  While he is in the shower, she goes through his phone, finds the videos, and goes to the MP station to say, “I’ve been assaulted and here is the evidence!”  I think a rigid legalistic view that she should be prosecuted would be an injustice.
    Did Roberts intend to permanently deprive Wicks of his phone?  Not really.  I’m sure that a competent defense attorney could argue that she believed that he would get his phone back once AFOSI finished copying the data on it.  The threat of that defense alone and a jury nullification on the lesser included appropriation charge would make me not want to prosecute her.
    And, in order to be consistent, wouldn’t this objective standard for prosecution be applicable to all criminal statutes in addition to larceny?  If so, then what does the Government do to a guy who is falsely accused of rape by a female who has consensual regret sex with him when her boyfriend is deployed when he produces a surreptitiously recorded video of their tryst?   Are you going to make him a sex offender by charging him under Article 120? Are we going to ruin his career with a GOMOR in his fiche because he had the audacity to bring forth evidence of his innocence?  
    I’m still waiting for that client, by the way, who lawyers up, calls me, and says he has a tape.  After my client waves the Article 32, that will be a really fun trial.

  9. Dew_Process says:

    Time to blow the dust off of Article 98, I’d say!
    And why grant her immunity?  That’s an admission by the government that she did something wrong, first of all.  Second, if you are really looking to promote GO&D, prosecute her first and then go after the proverbial “big fish.”

  10. SFC V says:

    If you don’t grant her immunity she will not testify.  Her testimony is pretty much required to lay the foundation necessary to admit the phone and messages. 
    How would you prosecute her under article 98?  Exactly what duty did she have regarding the proceedings?  What provision regulating a proceeding did she fail to comply with or enforce?