In United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (CAAFlog case page), CAAF held that because sex offender registration is a collateral consequence of the conviction and not the sentence, a military judge did not err in instructing the members that they could disregard the appellant’s discussion of sex offender registration in his unsworn statement during the sentencing phase of the court-martial.

Talkington was a significant decision, but also a limited one. In particular, the unsworn statement was the only source of information about registration in Talkington, meaning that the issue was a fact not in evidence because “the ‘unsworn statement is not evidence.’” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)).

After CAAF decided Talkington, military judges began to give instructions that functionally told members to disregard registration when determining a sentence. However, in a recent unpublished decision the Army CCA suggests that military judges should go further and “limit unsworn statements to the matters allowed under the rules.” United States v. Feliciano, No. 20140766, slip op. at 9 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).

A footnote elaborates:

Consider the following: Were a military judge to prevent an accused from mentioning sex offender registration during an unsworn statement, such an action will almost certainly be harmless error. Since the panel may be instructed to ignore the information during deliberations, there cannot be prejudice from excluding in the first instance what the panel would be told to ignore in the second.

Id., slip op. at 9 n.4.

31 Responses to “The Army CCA suggests that an accused should be prohibited from mentioning sex offender registration during an unsworn statement in sentencing”

  1. Philip Cave says:

    IMV CAAF should revisit Talkington, and military judges should instruct on SOR.  And the motion I have been filing for several years sets out the reasons why there should be an instruction–including why SOR is a punishment, not a mere collateral effect; and why Talkington is wrongly decided, or at least not the complete answer.
    There are three certainties in life: death, taxes, and SOR.
    And in the miltitary: death, taxes, SOR, and loss of retirement benefits. 
    As a first argument, consider that it is IAC in failing to seek to have the sentencing authority be told about loss of retirement benefits if the person is retirement eligible or in the 18-year window.  See e.g., United States v. Greaves, 46 M.J. 133, (C.A.A.F. 1997); United States v. Becker, 46 M.J. 141, 143 (C.A.A.F. 1977) and the Benchbook instruction.  Part of the rationale is because of the “certainty” of lost benefits with a punitive discharge.  Why is not SOR so certain.
    Over the years I have conducted in-depth research on many state SOR requirements.  Registration is certain.  As I think we know, registration never gets to be less onerous, only more rigorous.  (BTW, just a few years ago, Congress sought to remove–it failed–welfare benefits from a person on a SOR.  But hey, that’s just another collateral consequence of SOR, nothing punitive there.)
    Like the consequence of deportation, sex offender registration is not a criminal sanction, but it is a particularly severe penalty. In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency reporting requirements and place of domicile restrictions. Moreover, sex offender registration is “intimately related to the criminal process.” The “automatic result” of sex offender registration for certain defendants makes it difficult to “divorce the penalty from the conviction . . . .”
    United States v. Riley, 72 M.J. 115, 120-121 (C.A.A.F. 2013), citing People v. Fonville, 291 Mich. App. 363, 804 N.W.2d 878, 894 (Mich. Ct. App. 2011).
                I think it should be argued that SOR now satisfies the Mendoza-Martinez test for what is or isn’t punishment.  Mendoza-Martinez  was decided in 1963, when SOR was not yet on the horizon.  But see, Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003).  I think too there is room within CAAF’s own decisions as well.
    Although military judges and members should not generally consider collateral consequences in assessing a sentence, this is not a “bright-line rule.”  In certain circumstances, therefore, it may be appropriate for the military judge to instruct on collateral matters.  In deciding whether the military judge erred in giving such instructions, we will take a flexible approach focusing on the military judge’s responsibility to give “legally correct instructions that are tailored to the facts and circumstances of the case.”  For example, the “availability of parole and rehabilitation programs are issues of general knowledge and concern, and as such they may be instructed upon, especially when requested by the members.”
    United States v. McNutt, 62 M.J. 16, 19 (C.A.A.F. 2005).  Keep in mind that SAPR training places some emphasis on SOR as a consequence for certain bad behavior by

    Articulating lifetime costs of poor decisions.

    Perhaps as an issue of “of general knowledge and concern.”
                As you read about SOR you will find too that there are references to the specific and general deterrent effects of SOR and yes, the rehabilitative effects.  Are not these three of the reasons for “punishment” in the military, and therefore if SOR serves any of these purposes, is SOR not relevant in fashioning an appropriate sentence for the individual offender and the facts of the case.  If a matter goes to either or all of these sentencing factors or reasons, does not evidence that addresses them become relevant–I think it does.  Consider, the U.S. Department of Justice, Office of Justice Programs advises that:
    The registration program may also have salutary effects about the likelihood of registrants committing more sex offenses. Registered sex offenders will perceive that the authorities’ knowledge of their identities, locations, and past offenses reduces the chances that they can avoid detection and apprehension if they reoffend, and this perception may help to discourage them from engaging in further criminal conduct
    Check out the DoJ Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART).
    Some will remember about Admiral Byng.  “Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres (In this country [England], it is wise to kill an admiral from time to time to encourage the others.).  I believe that to be a call to specific and general deterrence.
                Consider that a panel is instructed as to the stigma and effects of a punitive discharge–impact on the ability to obtain employment, for example.  Well, isn’t a registration requirement that prevents you from certain employment sufficiently similar–or what about the social stigma of a punitive discharge to which is added that of being a RSO.
                Until last year I confidently told clients that SOR laws change, and that today you might only have to register for 20 years, but that could change tomorrow and you would be covered by the new law–no ex-post facto problem.  That is changing, admittedly slowly.  A number of states now consider SOR punitive in certain respects (perhaps if your client is going to one of those states upon release, that makes SOR even more relevant).  The courts have ruled so under their state’s constitution when applying their state ex-post facto provision. But until this year, no federal circuit has found a new requirement to be punitive and thus subject to ex-post facto consideration under the federal constitution.  That changed in January.  We can now say there is at least one federal circuit that has found a state’s new registration requirement punitive, subject to federal ex-post facto analysis, and violative of the federal ex-post facto clause.
    Well, those are my thoughts for today on this thorny topic.  My bottom line is that you can’t rely just on the idea of a stigma and the punitive effect of SOR to win this issue. You also have to tie your argument to the reasons why the military and society imposes a consequence for criminal behavior–that being the principles of sentencing.
                And worth the read for the coming weekend: Rachel J. Rodriguez, The Sex Offender Under the Bridge: Has Megan’s Law Run Amok?  62 RUTGERS L. REV. 1023 (2010). 
                Oh, and by the way, this thinking applies to the occasional client with a Denedo problem doesn’t it?  See e.g., United States v. Couto, 311 F.3d 179, 183-84 (2nd Cir. 2002) (Immigration and Nationality Act eliminated all discretion as to deportation of non-citizens convicted of aggravated felonies, her plea of guilty meant virtually automatic, unavoidable deportation.).

  2. Stay on Target says:

    If the issue was not briefed by either party or submitted pursuant to Grostefon, why is ACCA addressing the issue?
    The footnote is essentially an advisory opinion. It wasn’t an issue in the case. Can or should a service court just pick out unraised, unbriefed issues and draft guidance to the field in memorandum opinions? Given that this footnote is pro-government, is this proper? Usually when guidance to the field is issued it is directly related to (the briefed and) the issued opinion — not unrelated dicta.

  3. Just Another ADC says:

    Regardless of whether Talkington was rightly decided, I think that the ACCA footnote is incorrect. The unsworn has its roots in the common law right of allocution.  Limiting the unsworn to matters allowed under the MREs would essentially limit allocution to matters that could otherwise be presented as evidence.  The question of prejudice isn’t so much whether the members should have considered the statement, but whether the accused was given the due process right to make his statement in allocution.

  4. Zachary D Spilman says:

    Well, Phil Cave, The government feels very differently. As discussed here:


    MR. DREEBEN: Now let me give a civil example and then I will bring it right back to this case. Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes. And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they’re out of the military, and we’re going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.


    JUSTICE ALITO: When you say in a civil proceeding, you mean?


    MR. DREEBEN: Yes, noncriminal. Noncriminal.


    JUSTICE SCALIA: So it’s just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.


    MR. DREEBEN: Not going to be a criminal punishment that’s imposed at the end of the day.


    JUSTICE SCALIA: So just — just more -more likely than not is the test.


    MR. DREEBEN: That’s an acceptable level of proof for the civil law.

  5. ry says:

    What a woefully inappropriate footnote.  A court of appeals should NEVER being advising to commit error.  The fact that it is a footnote, highlights that it is not essential to this case.  Advising how a course of action would be harmless ERROR, amounts to advising judges it is okay to commit error.  While the ACCA might think such an error is likely to be harmless, we are obligations to follow the law.  The appeals court is obligated to follow the law.  This footnote provides this is one law that you can violate because it’s not a big deal?  Since when are we supposed to decide whether to follow a law or rule dependent on whether we will be smacked for doing so?  Not something a lawyer, let alone appeals court, should ever actually state.  Moreover, they are supposed to decide every case on its facts and this suggests the facts wouldn’t matter.  Terrible. 

  6. Wade Faulkner says:

    Stay On Target – ACCA routinely selects unraised and unbriefed issues on which to comment.  Although they don’t always say why, they usually justify on the grounds they can only “approve the findings and sentence as are correct in law and fact.”

  7. Wade Faulkner says:

    In reading the opinion, however, I’m not sure it was unraised or unbriefed.  The opinion doesn’t indicate that ACCA raised it on their own, and the defense counsel objected to the MJ’s instruction to the panel.
    That doesn’t cure the obvious error in the footnote, but at least they weren’t striking out on their own…in this case.

  8. Zachary D Spilman says:

    There’s absolutely nothing wrong with a CCA deciding a case on an issue not raised by the parties. See United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page).

  9. stewie says:

    Clearly the issue of the instruction was raised…the part about how maybe MJs should just not allow it in at all in the future appears to be dicta. So it wasn’t completely raised out of the blue, but it’s not directly on point with the issue raised/objected to at trial either.
    I concur with others that the footnote is unwise. I think the courts are correct, you have two contrary legal principles butting heads, but just like a tie goes to the runner, in this case, Talkington should be revisited. SOR laws are more mature now, more unified, and are guaranteed to occur to some extent in every state. If you can talk about losing military benefits, and you can talk about losing retirement, there’s no reason why you can’t talk about this. And the reality is, in MOST cases, it won’t matter. The panel isn’t going to care. But in some cases, it may matter, the panel may care, and those are the cases they will want and need to consider this effect in their overall punishment.

  10. Charlie Gittins says:

    It will matter in cases where the panel has residual doubt and to hear about lifetime sexual offender registration will likely work to see a less onerous punitive sentence imposed.  I have had one of these — accused was charged with serial raping two step daughters.  Lots of evidence of coaching by wife’s mother who hated the accused.  Members convicted but sentenced to 12 months confinement.  Truly a ridiculous sentence for the acts charged.  Within two years, the two girls get pangs of guilt and come clean and I move for a new trial.  A hearing is ordered and the MJ concludes that my client was entitled to a new trial on grounds of fraud on the court.  The USAF didn’t retry and just gave the airman back his back pay etc and he took his Honorable discharge to Wall Street.  The combo of residual doubt and the fact that the accused told the members about the horror of sex offender status combined to give the guy a short enough sentence that he had time to petition for a new trial once he got out and got to the bottom of the coaching.   

  11. Dew_Process says:

    “Advisory” footnotes such as the one here, are nothing more than an overt attempt to reduce individualized sentencing. Yet, in capital cases – for those of you who have done any – there are battles galore over the nature and extent of so-called “aggravating” factors. Yes, to some extent, an “apples and oranges” argument, but one squarely within the historical parameters of “unsworn” statements.
    But in the context here, the “suggestion” [as well as Talkington] flies in the face of what the members are actually instructed:

    You should bear in mind that our society recognizes five principal reasons for the sentence of those who violate the law. They are rehabilitation of the wrongdoer, punishment of the wrongdoer, protection of society from the wrongdoer, preservation of good order and discipline in the military, and deterrence of the wrongdoer and those who know of (his) (her) crime(s) and (his) (her) sentence from committing the same or similar offenses. Benchbook at 64.

    SOR laws are expressly designed to “protect society” [how, is a separate question imho] by a) restricting movement of the SO; b) restricting where s/he can reside; c) restricting where s/he can be, e.g., school grounds, public libraries, etc.; and d) providing “notice” to society that there is a SO amongst them. And that of course dovetails into the “deterrence” aspect.
    So how does one make it an evidentiary matter before the members?  For years, I’ve had MJ’s take judicial notice of the applicable State law (where applicable of course), that e.g., the Accused’s conviction is one of “domestic violence” under that law and then, that he’s barred from possessing a firearm and couldn’t get a civilian law enforcement job after 13 years as an AF Security Forces member; or that my client’s conviction of most Art. 120 offenses will preclude him/her from obtaining any professional license required by the State, etc.  Or, why not call an “expert” in the State’s sentencing laws? Many if not most States have people who are the so-called “sentencing guru’s” who can say, “this is what’s going to happen IF you are convicted of X.”
    Lastly, I’m with brother Phil here – SORA / SORL’s have morphed considerably since John Roberts, Esq., convinced SCOTUS in Smith v. Doe, 538 U.S. 84 (2003), that Alaska’s SORL was a non-punitive, non-criminal process and therefore didn’t violate the Ex Post Facto clause. Those mutations are beginning to get courts to reconsider this and indeed, an easy argument can be made that today, most SORA/SORL’s are indeed punitive, see, e.g., The Evolution of Unconstitutionality in Sex Offender Registration Laws.
    I would hope that the Army DAD will seek CAAF review on this and that CAAF seeks out amici curiae assistance.

  12. Stay on Target says:

    The opinion indicates that instruction was not raised by appellant.
    It states, “we address appellant’s assigned errors that the evidence is legally and factually insufficient.” Second, it notes in a footnote that, “Appellant also personally raised several issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Except for appellant’s claim of unreasonable multiplication of charges, the matters raised by appellant warrant neither discussion nor relief.”
    Chin stands for the idea that a CCA has the “affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved.” So, even if appellant waives an issue, a CCA is free to examine it and grant appellant relief.
    Here, the CCA looks at an issue not raised by appellant, expresses “two concerns” about Talkington (which, in practice, results in convicted sex offenders discussing their future status in unsworn statements), states the judges actions were “entirely in accord with Talkington,” and states appellant is not entitled to any relief.
    And then the opinion, in an unnecessary footnote, green-lights MJs to “prevent an accused from mentioning sex offender registration during an unsworn statement” because “such an action will almost certainly be harmless error.”
    I do not see how Article 66 makes such an opinion appropriate. They aren’t ignoring waiver to grant relief because there is an error they believe needs corrected, regardless of waiver.
    The opinion spends time on a rather clear non-issue to green-light potential, future trial court errors, saying any future error would “almost certainly be harmless error.” (emphasis added).
    I don’t believe Congress gave CCAs an awesome power for the purpose of green-lighting future error.

  13. Peanut Gallery says:

    So judges should commit errors because they can have confidence that such errors will be held harmless?  It’s a kangaroo party at the “court.”

  14. Vulture says:

    Stay on Target.
    ACCA declared war last year.  Don’t put anything over em.

  15. Defense Wizard says:

    Translation: Don’t worry about committing error, because we’ll probably find it harmless, and if it’s harmless, is it really even error?Gives me the distinct feeling that the law has slightly less meaning than the Pirate Code (which is really more of a guideline, anyhow).

  16. DCGoneGalt says:

    Quit whining you troglodytes, ACCA just took the sophisticated and nuanced first steps to an eventual position of adopting the Supreme Court’s interpretive lead and are treating the Code not as written document that means what it says but as a living and breathing document capable of growing with the times and adjusting to society’s and the judiciary’s evolving views.

  17. Dew_Process says:

    Reminds me of an old W.C. Fields’ quote:

    If at first you don’t succeed, try, try again. Then quit. There’s no point in being a damn fool about it.


  18. Tami a/k/a Princess Leia says:

    This is a bad decision on the SOR issue.  When a “collateral consequence” is a “for certain” consequence, as the MJ acknowledged SOR is a requirement in all 50 states, then it qualifies as mitigation evidence that the panel (or the MJ) is required to consider in adjudging an appropriate sentence.  SOR is along the lines of loss of monetary value of retirement; loss of VA, medical, and dental benefits for the accused and family; deportation; and loss of naturalization/inability to be naturalized.  We tell panel members during sentencing argument, and the MJ will also tell panel members because it’s in the Benchbook, the five reasons for adjudging an “appropriate” sentence.  One of those reasons is protection of society.  SOR fulfills the purpose of protecting society, so there is no need for lengthy confinement, if any, to be adjudged.  Someone registered as a sex offender is simply living in a different kind of imprisonment.
    Defense counsels can avoid the Talkington issue (unsworn statement is the only evidence of SOR requirement) by asking the accused where he intends to reside after completing confinement, if confinement is adjudged, then present the state law on SOR (and maybe even county law) for that area, and ask the judge to take judicial notice of the law.  Then the panel has to consider it, and there’s no basis for the MJ to tell the panel to disregard the evidence lawfully admitted into evidence.

  19. Zeke Kennen says:

    The footnote does not say there would be no error for a trial judge to preclude the accused from mentioning sex offender registration. The footnote instead says the error would be held harmless on appeal.  Which begs the question of whether a court of law should be encouraging error below, harmless or not.  What is a court of law’s purpose if it is not the avoidance of legal error?

  20. Zeke Kennen says:

    For that matter, what is a judge’s purpose if it is not the avoidance of legal error?  What is Judge Wolfe’s purpose in encouraging the commission of error, harmless or otherwise, below?  Is that a purpose consistent with serving as a jurist?  Is that a purpose consistent with serving as a judge advocate?  As a military officer?

  21. Concerned Defender says:

    Anyone else tire of the adversarial nature of the Defense against the Prosecution AND the Courts?
    More twisted logic from crackerjack agenda-driven “lawyers…”.  
    Plainly we all know that RCM 1001 and sentencing belongs with the accused and the accused can present almost anything he/she wants in nearly any fashion to include signing a song to the panel, or offering their statement in poem while juggling if that’s what they want to do.  Perhaps these “Judges” should open the MCM, go to RCM 1001, check out what it says there.  The accused can introduce matters in mitigation, to include NJP that was previously given 
    It just appears that these military appellate courts (particularly the Army) likes to take sides with the government and sustain their win.  No surprise here really.  In this case, the instruction literally gutted the Accused statement, cutting his mitigation out.  
    Bewildering, and why bother if you’re an MJ?  
    I’d invite these “Judges” to revisit the plain language of the rules.  
    SOR not punitive?  Give me a break. 
    Let’s look at the definition:  “Intended as punishment.  Extreme or severely high.”  Clearly it attaches with a conviction.  Nobody gets it without a conviction.  So it’s directly and proximately related.  Also, it’s at least partly punishment, and if one doesn’t register in the very short window upon moving, etc. then there is a follow-on punishment for failing to follow.  So yes, directly and indirectly it is punitive in nature.  Anyone who says otherwise is intellectually dishonest.  That’s like saying that jail isn’t punitive.  It’s just something that occurs coincidentally to someone if and only if convicted.  
    I’d also suggest these “Judges” spend 10 seconds on the introspection of the absolute punitive nature of an SOR.  Stated otherwise, would they have any trouble with their career, law license, employment, housing, education, etc. if slapped with an SOR tomorrow?  Only intellectually honest answer is “Yes.”  Therefore it’s punitive in nature. 
    It is so exhausting reading and dealing with these wildly intellectually dishonest opinions and rulings… when did Judges stop learning how to actually apply logic and reason to law?
    Would be refreshing if the Courts demonstrated some neutrality from time to time.

  22. stewie says:

    CD, once again, you take a legitimate issue with legitimate concerns…and you turn it crazy like Harley Quinn after the Joker got done with her.
    People can be wrong. They don’t have to be “lawyers” or “judges” they can just be lawyers and judges who have a different, even wrong reading of things. Everything that you think is really obvious and simple (which apparently is everything) isn’t what everyone else thinks. Just because someone disagrees with you, does not make them “agenda-driven.”
    And tinfoil will not protect you because everyone knows the government’s thought control rays are only blocked by lead or Styrofoam.

  23. Philip Cave says:

    Maybe I’m old fashioned, but it seems to me this is something we should be educating people about, rather than castigating.
    The judges are wrong, but it’s partly our fault for not aggressively litigating the issue with facts and argument.  

  24. Concerned Defender says:

    But this is the issue…  Judges shouldn’t be “wrong.”  Ever.  It’s their job to be right.  Yes, I accept people are human and make mistakes.  But Judges control the show.  They rarely have to make on-the-spot decisions.  If it’s tough, consult some colleagues or, ya know, books.  References.  Case law.  And if you’re still unsure, side with the Defense.  In close calls, the Defense should always prevail.  Ya know, that whole innocent until proven guilty thing that it seems is a concept lost on the bulk of Judges.  Or similar concepts in sentencing.  They repeat it time after time, but seem to not really “get it.”   
    There are a lot of really hard concepts in law and in the world.  Determining whether SOR is punitive in nature is not one of them and to the contrary seems pretty elementary.  It’s a very bad mandatory consequence that by law affixes upon and only upon a conviction for a sex offense, follows a person indefinitely, places severe burdens on life, employment, housing, schooling, etc., and becomes a crime itself if the SOR law isn’t followed.  And it takes a high level (generally state governor, DOJ, whatever) entity to exonerate/undo that consequence.  Ya ain’t got much mental horsepower if you can’t figure out that’s about as punitive as it gets.  This is a layup folks.  If you can’t make a layup you have no business being in professional basketball… I mean, really…
    If it’s still unclear, perhaps a process of elimination will help will help the Judges with the tough concept.
    Is it a reward for doing something good?  No.
    Do you get SOR if you are tried, but acquitted?  No.
    Do you get SOR for being tried or convicted for a non-sex offense? No.
    Do you get if it convicted of a Sex Crime.  Ding.  YES.  
    Still need more hints?  It’s not VOTER registration.  It’s not VEHICLE registration.  It’s not COLLEGE registration.  What is SOR?  SEX OFFENDER registration.   For the win- the CLUE resides in the name of the registration.  If you are convicted of a sex offense, you must register and it’s a crime to avoid it.  

  25. DCGoneGalt says:

    Judges have to make on-the-spot decisions all the time and it is a job I certainly don’t envy but SOR as punitive isn’t one of those decisions . . . it can always be seen coming in advance and is in play in every 120 trial.  
    The best way I ever saw a judge handle the matter was at a time long before and a place far away when I was part of an in-court argument over the issue of whether sex offender registration was punitive.  The judge asked trial counsel whether they would rather do three months in confinement or have a lifetime SOR requirement.  The trial counsel tried to avoid answering and the judge responded with something along the lines “that’s what I thought . . . next issue”.  To me, it really is that simple. 
    I understand that my example can be argued against by pointing out the definition of punitive is “inflicting or intended as punishment” and confinement is a form of punishment that can be awarded or not based on each case whereas SOR is merely a collateral consequence that automatically flows from a classification of crimes that one is convicted of rather than being issued as a punishment by a court.  However, I do not see in RMC 1001(c)(2)(C) where the unsworn statement is limited against offering this and it is there where I feel Feliciano is clearly wrong. 
    I was once ready to tie SOR, in a state with particularly onerous requirements that included what seemed to be an unmanageable amount of classes/counseling, to rehabilitative potential because of all the “opportunities” that the state would have offered.  Fortunately, that person was acquitted because he was not guilty in the eyes of everyone other than his commander(s) and the SJA.

  26. Philip Cave says:

    As I noted in my first comment, it only gets worse.

  27. stewie says:

    Sure they can see it coming in advance, and the case law tells them…
    1. They can completely block it if they want to
    2. They can let the accused say it, but then instruct the panel to ignore it
    3. They can let the accused say it, and do nothing
    Case law says, there is no “wrong” here. Because much of law is not black and white, with only one obvious answer, and often not even necessarily easy or clear answers. And pretending like every issue has a clear and obvious answer and thus if our preferred clear and obvious answer isn’t agreed with it must be agenda-driven, or stupidity is, well pretty agenda-driven and stupid.
    I think Talkington is wrong. I don’t think the folks had an agenda, and I don’t think they are stupid, I just think they are wrong. I hope it gets fixed as we know have a pretty mature SOR landscape across the country.

  28. Dew_Process says:

    @ Stewie:

    I hope it gets fixed as we []now have a pretty mature SOR landscape across the country.

    I have the same feelings Stewie, but as I pointed out up-thread, what started out as arguably non-punitive SORL’s and the Court’s gave their blessings as such, have now morphed into 3-headed, punitive monsters.
    I have a client, a 60 year old physicist, who looked at CP in the privacy of his own home office.  He didn’t trade, engage in chat rooms, or make any effort to contact any kids period. He got a misdemeanor plea with 3 years of probation, and 20 years of SORA registration. The judge released him from probation after 2 years, and made specific findings that the odds of recidivism, based upon the evaluations submitted were slim to none. He lost his job over this, is basically unemployable, cannot go grocery shopping unless his wife is with him, etc., etc.  Every 3-4 months, the Sheriffs show up to “inspect” his computer, he cannot go to the family cottage in Canada because SORA’s show up as “pending cases” on their computers, and yet, our (and most other) courts engage in the façade that none of this is punitive. Especially if he violates some obscure provision, like finding himself at 975 feet from a school, where he’s got a 1000 foot “stay-away” radius.
    But, if he were a 24 year old E-5, to say that this can’t be brought out as mitigation in an unsworn statement, is simply ignoring common sense and logic.  But, if the Rules of Evidence are “relaxed,” what is to prohibit the defense from submitting an Affidavit from a proper subject-matter specialist as to what the accused’s SOR requirements will be, for how long, and other collateral effects?  The rule needs to be changed and the SOR laws need to be re-evaluated. There is now a considerable body of social-science and medical evidence that challenge most of the assumptions legislative bodies had when they enacted these draconian laws, e.g. recidivism rates, that “looking” leads to “acting,” etc. The alleged “victims” get specialized and experienced SVC’s with considerable resources at their disposal – military defense counsel have a hard time getting a qualified Sex Offender evaluation who isn’t somehow tied up with the “government.”
    End of Rant!

  29. DCGoneGalt says:

    stewie & Due Process:  The problem isn’t with the “rule” since the RCM on allowing an unsworn is broad and doesn’t contain this limitation.  The problem is that judges have “interpreted” a ban on considering, and now on offering, this information.  If an accused can’t mention SOR then why can they mention any of the info that they typically mention?  The rule doesn’t contain these limitations.  If there is a desire to limit the rule, then change the rule.  And I never alleged an “agenda” was in play, unless I suppose you consider the agenda of people thinking it normal that judges interpret rules and statutes to contain language that isn’t there that makes the interpretation subject to change whenever judges change their mind or there is a change in judges.  So, in addition to cd’s “agenda” I guess you can actually add that one as well.
    Frankly, I am surprised the rule hasn’t already been amended set certain limitations.  For instance, to ensure inadmissible 412 matters are prohibited on unsworns.  While judges already watch out for such things I would not be surprised if there has not been a member who had evidence of a prior false allegation that was kept out of evidence who tried to mention it in an oral unsworn on their own accord.  

  30. stewie says:

    But the rule in the RCM isn’t absolute. Broad doesn’t mean anything. Now, I and you and DP agree that this should fit, not simply because the rule is “broad” but because we probably all agree, or at least I do, that SOR is no more “collateral” than and every bit as relevant as loss of retirement pay (for one example).  Loss of retirement pay isn’t a punishment either, but we’ve carved out an exception for that, even as I’d guess most would agree that if one had to pick between losing retirement pay, or keeping it but being under SOR for 20+ years, 95% of us would rather lose the retirement pay.

  31. Concerned Defender says:

    Once you accept the intellectual dishonesty and who it seems to favor – the prosecution – the curtain seems to be pulled back.  WHY are the Judges favoring the argument this isn’t punitive?  Makes no sense.  Certainly pushes the needle into the bias realm, where Judges certainly should NEVER be.  
    Bet if you asked 100 people who had some understanding of the issue, 99 of them would say that SOR is punishment.