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Professor Friedman has posted several amicus filings for Williams v. Illinois.

You can read the brief of the United States by clicking here.  You can read the brief of 42 states, the District of Columbia, and Guam, all under the leadership of Ohio, by clicking here.  The National District Attorneys Association has also filed a brief, and I expect there will be at least one more; I will send links for these when I have them.

Find more about this case on SCOTUSBlog, including some amicus for the petitioner.

10-8505, Supreme Court of Illinois, Dec 6, 2011

Issue: Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.

Plain English Issue: Whether a court violates a criminal defendant’s rights under the Confrontation Clause by allowing an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial.

The Ninth Circuit held today that NJP is not a criminal proceeding for double jeopardy purposes and is not so punitive that it has been transformed into a criminal prosecution. The case, which involved mast for drunk driving, is United States v. Reveles, No. 10-30313 (9th Cir. Oct. 24, 2011),

Here is a link to Vol. 76 Fed. Register 65062, of 19 October 2011.

As I am wont to do I was trawling some state cases, and I came across the (Second) District Court of Appeals for Florida decision in Rolon v. Florida.  This is not a military case, but keep reading.

In Rolon, the accused was convicted of murder.  On appeal Rolon successfully argued that he received IAC during the direct and cross examination of himself on the merits. A retrial was authorized.  At the second trial, over objection, the prosecution was allowed to use Rolon’s testimony at his first trial on the merits of his second trial.  On appeal Rolon argued that the second trial’s use of his testimony violated the Fifth and the Sixth.  The appellate court rejected error on the Fifth, but agreed error on the Sixth.  There is case law on the issue.  But the court relied on two cases.

The parties do not cite, nor have we been able to find, any Florida authority that deals with this exact issue. However, authority from other jurisdictions explains the nature of the error in this case. For example, . . . People v. Mora, 262 P.2d 594 (Cal. Ct. App. 1953), disapproved on other grounds, People v. Van Eyk, 364 P.2d 326 (Cal. 1961)[.]

The court moved on:

While Mora dealt with the complete denial of counsel, a similar result was reached in a case involving  ineffective assistance of counsel. . . . United States v. Murray, 52 M.J. 671 (N-M Ct. Crim. App. 2000)[.] . . .

The import of these two cases is that a defendant’s testimony given in violation of his Sixth Amendment right to counsel may not generally be used against him in a subsequent proceeding.

So, Murray had the following players involved:  LCDR John A. Maksym, Appellate Government Counsel, the decision was authored by then Senior Judge Troidl (currently NMCCA’s clerk of court), and the other appellate judges on the panel were, W. A. DeCicco, and D. A. Anderson (two familiar names I believe).  For older readers, Bill Hollerich was the military judge at the retrial.  NMCCA had initially affirmed, but CAAF reversed and NMCCA sent the case back for a retrial.  See prior history at United States v. Murray, 42 M.J. 174 (C.A.A.F. 1995). 

NMCCA did not write on a clean slate in Murray.  The Air Force was there first. See United States v. Vanderpool, 15 C.M.R. 609 (A.F.B.R. 1953); United States v. Mansfield, 33 M.J. 972 (A.F.C.M.R. 1991).  Murray, 52 M.J. at 676, n. 9.

Judge Craig C. VillantiAs a final note there is no indication of prior military service in Judge Craig Villanti’s bio.

In  United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001), the CAAF has held that the Sixth Amendment confrontation right does not apply at sentencing, but that the Fifth Amendment does.

Here is an interesting case from the Supreme Court of Arkansas, Vankirk v. State, which applies the confrontation right to a jury (members) case.  Here are Prof. Friedman’s thoughts:

I think this case is a good illustration of the issue of confrontation rights in sentencing. Suppose the girl had testified live at the sentencing proceeding, but at the conclusion of direct, as defense counsel was rising to cross-examine, the judge said, "You are excused. We have no need for cross-examination, so I will not allow it." I think that would plainly be unconstitutional – if not under the Confrontation Clause, . . . then under the Due Process Clause. So should the result be any different when the witness testifies just outside the courtroom on videotape and the tape is played at the proceeding? When I refer to the speaker as a witness and say that she is testifying, I am drawing on one of the essential points of Crawford: Simply because a person (such as Sylvia Crawford) speaks out of court does not mean that she is not testifying, and indeed the central focus of the Confrontation Clause is to require that testimony be given in court, under prescribed procedures[.]

So perhaps the U.S. Supreme Court should go the full route of holding that the Confrontation Clause applies with full force to all sentencing proceedings. It may be reluctant to do so, however. One possibility would be to hold that the Confrontation Clause itself does not apply to most sentencing proceedings (i.e., that it does not apply beyond the scope of Apprendi), but that, not withstanding Williams v. New York, 337 U.S. 241 (1949), it does provide some right of confrontation, perhaps more easily overcome than the Sixth Amendment right.

h/t Professor Friedman.

Here is a link to pending non-military criminal law cases at the Supremes, which may have an impact in military cases.  Next set of potentially relevant oral arguments begin 31 October.  Here are links to subsequent ‘actions,’ in some of the cases.

Transcript of Maples v. Thomas, oral argument.  Whether a defendant is prohibited from arguing in federal court that his death sentence is unconstitutional because his lawyer missed a filing deadline in state court.  I’m reminded of Denedo v. United States

Transcript of Howes v. Fields, oral argument.  Suspects are entitled to Miranda warnings when questioned about a crime while they are in custody.

Here are some additional items of pending petitions.  

1. A pending petition in United States v. Alvarez, Docket: 11-210, Issue: Whether the Stolen Valor Act, 18 U.S.C. § 704(b), which makes it a crime to falsely represent that you have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, is facially invalid under the Free Speech Clause of the First Amendment.

2.  A pending petition in Villaueva v. United States10-1535, Whether evidence that is "inextricably intertwined" with the charged crime but does not directly prove that crime may be admitted without the limited-admissibility instruction otherwise required by Federal Rule of Evidence Rule 404(b).

3.  A pending petition in York v. Texas, 11-397, Whether the doctrine of collateral estoppel, embodied in the Double Jeopardy Clause of the Fifth Amendment and made applicable to the states through the Fourteenth Amendment, bars relitigation of a fact necessarily decided in the defendant’s favor in an initial prosecution, when that fact is deemed evidentiary in nature in a subsequent prosecution.

4.  A pending petition in Segal v. United States, 11-343, (1) Whether the intent to defraud, under the mail and wire fraud statutes, requires an intent to cause harm; (2) whether mail and wire fraud may be premised on misstatements to parties other than the alleged victims of the fraud, without evidence that the victims knew of the misstatements or would have found them material; and (3) whether the breach of a fiduciary or legal duty imposed by state law can form the basis for a federal mail or wire fraud prosecution.

5.  A pending petition in Blueford v. Arkansas, 10-1320, Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.  Here’s a Time report.

6.  And one special for appellate litigators, a pending petition in Wood v. Milyard, 10-9995, (1) Whether an appellate court has the authority to raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense; and (2) whether the state’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amounts to a deliberate waiver of any statute of limitations defense the state may have had.

7.  A pending petition in Harvey v. McNeil, 11-295, (1) Whether the court below properly held that counsel’s failure to strike an openly biased juror does not constitute objectively unreasonable performance under Strickland v. Washington and that petitioner must bear the affirmative burden of proving that he did not consent to the biased juror; (2) Whether a court may presume a strategic purpose from a silent record regarding why counsel made decisions that are on their face objectively unreasonable; (3) Whether . . .

8.  A pending petition in Kentucky v. Cobb, 11-294, (1) . . .  and (2) whether, under Strickland v. Washington, a court may presume that a defendant was prejudiced in the absence of a record showing that a Batson challenge would have been successful?

All links to documents from SCOTUSBlog or the Supreme Court.

CAAF Daily Journal for 4 October has this entry in regard to the oral arguments scheduled for next week.

In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Andrew S. Effron to perform judicial duties in the above cases, and that Senior Judge Effron has consented to perform judicial duties in the cases under Article 142(e)(1) (A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e) (1)(A) (ii)(2006).

As reported in the UK’s Daily Mail, the Justice Department is urging a U.S. federal judge to dismiss a lawsuit that demands the release of the images and videos of a deceased Osama Bin Laden pursuant to a Freedom of Information request. The Department cites concerns about the images inciting violence against Americans overseas and compromising confidential information about CIA and military techniques. In addition, the Department fears it would provide al-Qaeda and related groups with images to use for propaganda, and make the special ops team that conducted the mission “more readily identifiable in the future.”

Judicial Watch filed this lawsuit, and according to, the Associated Press and National Public Radio are co-plaintiffs.

The DoD recently launched a new Military Commissions website, complete with news, updates, status information on various trials, and copies of court filings from each case. It can be viewed here.

According to RCFP, journalists are cautiously optimistic about the value of this website in terms of the extent to which controversial documents will be made available.

In other Guantanamo news, the arraignment of al-Nashiri, who is allegedly responsible for the 2000 bombing of a port in Yemen, will take place “within 30 days” according to a statement by the DoD. CNN reports that al-Nashiri will be facing a capital military commission – a decision that al-Nashiri’s defense lawyers criticized in light of the fact that the commissions are not “constitutionally adequate” in the first place.

The DoD’s news release can be viewed here.

I have previously posted on the current approach of NMCCA to Fosler cases that are being heard by them for initial review.  So far there has not been an opinion in one of the trailer park remands.  Still no “Fosler” out of Army or Air Force or Coast Guard, so no “split” in the “circuits” for CAAF to decide.

United States v. Glover, No. 201100211 (N.M.Ct.Crim.App., 29 Sep 2011) (convicted according to pleas) – Affirmed. No sentence relief.

I think we have enough NMCCA cases to glean their approach, so I’ll stop counting and just note ones that are out of the ordinary.  Of the cases NMCCA has decided so far I’d expect them all to petition CAAF.  But the one of most interest will be Raucher.  Just when we thought it might get easy on the Fosler issues.  That’s because he was charged under a deficient Article 134, UCMJ, specification, but convicted of an LIO.  Had he been convicted of the 134 specification, then under the NMCCA “Fosler jurisprudence” it appears he would have had the conviction set-aside.

Former Sergeant Major of the Army McKinney? reports

Former Sgt. Maj. of the Army Gene McKinney will enter a plea, rather than stand trial for allegedly striking a slug passenger who demanded to be let out of McKinney’s car in Oct. 2010, WTOP has learned.

Court records show McKinney will enter a plea in Arlington Circuit Court Tuesday morning. His jury trial was scheduled to begin Monday.

McKinney was indicted in April 2011 for malicious wounding – a felony, and reckless driving – a misdemeanor.

Army Times reports:  A court-martialed U.S. soldier has been found not guilty by reason of lack of mental responsibility in the killing of a civilian contractor in Iraq.  And Houston Chronicle here.  This was a military judge alone case.

Thursday, The Republic reported: A court-martial was expected to wrap up Friday for a U.S. soldier accused of killing a civilian contractor in Iraq, and a military judge will then decide whether Pfc. Carl T. Stovall was mentally competent when prosecutors say he shot the Hungarian laborer to death.  Here are some of the points from Friday’s hearings reported by the

On Friday, the prosecution called psychiatric witnesses to rebut defense claims that Pfc. Carl T. Stovall, a diagnosed paranoid schizophrenic, was unable to appreciate the nature and act of his crime.


During his testimony, Lyszczarz said he conducted two interviews with Stovall for four hours each and admitted there was "pressure from the top" to get the evaluation done in a timely manner.
The "complexity of the case determines how much time you should spend," Johnson testified. "I have never conducted a competency (evaluation) in just four hours."

Monday kicks off opening arguments for the new SCOTUS term.  Here is a listing of pending cases, culled from SCOTUSBlog, of criminal law cases that may have some relevance to military justice practitioners (non of them are military cases).

Argument date | case number | case name | summary of QP.



Maples v. Thomas

Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state’s own conduct contributed to the default, and petitioner’s attorneys of record were no longer functioning as his agents at the time of any default.



Howes v. Fields

Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

The next two cases are of particular relevance to defense counsel.



Missouri v. Frye

Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel’s error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?



Lafler v. Cooper

Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.



Perry v. New Hamp.

Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?



Smith v. Cain

1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.



Williams v. Illinois

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.

SCOTUSBlog notes several (non criminal law) cases still to be scheduled for argument. And cases for the January, February, March, and April court sittings are yet to be set.

Professor Friedman has posted a link (via Westlaw) to a “nice opinion” on a case similar to Williams v. Illinois.  Professor Friedman has been a frequent amicus in confrontation cases, including in Williams. Here is a more available link to Derr v. State (Maryland).  This is a surrogate expert witness at trial case.  The Maryland court said:

Derr challenges the admission of forensic evidence introduced at trial through the testimony of an expert witness who did not take part in or observe the physical testing of the evidence, or independently determine the test results.

In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause (emphasis added).

SCOTUSBlog notes that Williams will be argued on 6 December 2011.

Issue: Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.

Plain English Issue: Whether a court violates a criminal defendant’s rights under the Confrontation Clause by allowing an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial.

Yesterday’s program at the Rhodes Conference on military jurisdiction saw more debate on the wisdom and practicality of civilian v. military jurisdiction.  Speakers detailed the integration of civilians into the prosecution of military personnel in some European systems and discussed the perils and advantages of trying some civilians in military courts (termed an “explosive” issue by Dr. Rain Liivoja, a research fellow at the Asia Pacific Centre for Military Law).

I chaired a panel that made clear how much national military justice practices have changed, and how international law regarding military justice has deepened, in the last decade.  Retired Major General Nilendra Kumar, former Judge Advocate General of the Army and now Director of Amity Law School, described the changes wrought by the 2007 Armed Forces Tribunal Act in India; Robert Husbands of the UN Office of the High Commissioner for Human Rights traced the evolution of international legal norms regarding military courts; Panagiotis Kremmydiotis, Chief Prosecutor of the Athens Air Force Military Tribunal canvassed the wide variation in national approaches to providing fair military trials; 1Lt Gergely Toth of Hungary summarized the reports of countries who participated in a well-attended 2010 military criminal law conference; and Christina Cerna, Principal Human Rights Specialist with the Organization of American States, analyzed the jurisprudence of the Inter-American Commission of Human Rights regarding military courts.

I was left with a sense of widespread and growing international interest in military justice but only limited convergence in terms of aspirations and current practice.  Dramatic political changes – a new Constitution in Kenya, a new regime in Hungary, and many others –are spurring changes in national military legal processes that defy easy generalization.