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A little off topic.

Capt Magee recently reported for duty at Navy Appellate Defense.

http://www.marinecorpstimes.com/article/20140711/NEWS/307110058

Older former NADC’s should be familiar with Leg Day.  There is a picture of at least one, with a couple of recognizable figures.

Magee will fit right in with a hoppy leg day.

Just a head’s up.

Riley v. California.  An important ruling today.

These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Bottom line a warrant is generally required.

 

 

Here is WaPo coverage of the release of a previously classified memo on the legal justification for the killing of Anwar al-Awlaki via drone strike in Yemen. WaPo link to the memo is here. Here is a link to the 2nd Circuit opinion attaching the memo, and related decision on the ACLU FOIA case here.

Here is a link to the hearing page for the Joint Subcommittee of the House Committee on Foreign Affairs hearing on The Bergdahl Exchange: Implications for U.S. National Security and the Fight Against Terrorism.  According to several sources, here (WaPo) and here (WaTimes) the Committee spent some time discussing whether SGT Bergdahl should be charged with desertion.  Didn’t they delegate that power to someone?

Not MilJus, but an amazing turn of events in the long running saga of the Washington Redskins team name.  From WaPo, here, “The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name ‘disparaging to Native Americans.’”  Link to order on WaPo site here.

The team lost the same issue at the TTAB in 1999, but won an appeal on standing grounds.  Prior TTAB decision here and one of the appeals decisions here.

Courtesy of Dew_Process.

There is a pending petition at the SCOTUS with interest to military practitioners – Brannan v. Humphrey.  The QP, and importantly the amicus filing of Georgia MOAA as amicus for the petitioner are at SCOTUSBlog.

 Issue: Whether petitioner, as a disabled combat veteran who is undeniably mentally ill, received ineffective assistance of counsel during the hurried sentencing phase of his death penalty trial.

There is a great deal of useful information in the amicus pleading which extends beyond the occasional death penalty case.

In line with that, my hard-copy of The Attorney’s Guide to Defending Veterans in Criminal Court, finally arrived.

An initial Marine Corps review into a raid by military investigators on defense lawyers’ offices earlier this month has found no evidence that the unusual search compromised cases.

The findings of the May 2 search were revealed Thursday during a motions hearing for Lance Cpl. Eric Salinas, a defendant in a hazing case who is being represented by defense lawyers in the Camp Pendleton offices.

So reports Marine Corps Times.

That is the headline for a new piece in the Miltary Times papers.

Over the 10 years from 2004 to 2013, data from the service judge advocates show:

■ Courts-martial have dropped about 50 percent.

■ Nonjudicial punishments are down about 25 percent.

■ Bad-conduct discharges have fallen by more than 60 percent.

And according to the Justice Department, the number of troops convicted of crimes and incarcerated in military prisons has shrunk by 35 percent.

I would be interested to know if some comparison was/is made to the post Dosert Shield/Desert Storm period.

RSP

http://www.c-span.org/video/?319182-1/defense-dept-meeting-sexual-assault-prevention

 

In 1987 I suggested that the Naval Justice School could conveniently be closed and everyone attend TJAGSA for all training, including basic.  My superiors were not amused.  I remain convinced, in fact more convinced, that all judge advocate training should be conducted by TJAGSA.  I thought that was a modest proposal to save money and improve training.  Oh, and there was a certain Congressman from Alabama, who if he’d heard of my idea would not have been amused either.  See it’s all about rice-bowls, which as we go forward with military justice reform stirring the rice will be a frequent unstated topic of the conversation.  Anyway.

I have another modest proposal for Judge Efron which I have addressed more at Global Military Justice Reform.  I hope to expand on the idea of the rest of the week by filling in some details.  I thought perhaps I could do it on the drip, or one rice grain at a time.

Why do we still not have permanent, many say standing, courts?  I don’t know.  The question has been raised many times over the years.  I think the two recent fiasco’s might have been avoided or lessened had there been a judge out there who could claim jurisdiction.

The Supremes heard oral argument today in two cases with potential impact for military justice practitioners.  Here are the cases and QPs, from SCOTUSBlog.

The issue in United States v. Wurie is:

 Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

The transcript is here.

The issue in Riley v. California is:

 Issue: Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.

The transcript is here.

I’m particularly interested in Riley, because of how military law enforcement acts in most cases.  Ask any client whether they were arrested, they will tell you no they were not.  Later when they do a background check they are astounded to find they “were.”  What usually happens is that they were invited, taken, or directed to go meet with [CID, NCIS,OSI, CGIS]; they will tell you that when they got there they were not advised they were free to leave, but that they eventually were told their rights; and finally they will say that before leaving they were swabbed, printed, and photographed.  Those events, as we know, result in the person being “Titled” and the event showing up in NCIC as an arrest.  But is it really an arrest, I have yet to hear a client tell me that the investigator said, “you are under arrest (or apprehension to be terminally correct).”  If it is, then Riley applies.  If it isn’t an arrest, then there can be no search incident, can there?  Forget the bit where the investigator asks to take the phone, and says, “I can get a warrant easily,” when the person balks.

I recently came across an article by a London barrister, Barbara Hewson, entitled “The Cult of Victimhood and the Limits of the Law.” Ms. Hewson is an interesting individual and has been a bit of a lightning rod for public statements she has made about Operation Yewtree, the investigation into sexual abuse by British television presenter Jimmy Savile and others, and about rape generally

This article is mostly directed toward prosecutions for what she terms “stale accusations of historic abuse.” In other words, accusations of sexual abuse that occurred when the victim was a child, but not reported for many years. However, I found one section particularly intriguing, discussing the development of the “victim industry:”

We should be more critically aware of the prevailing ideology of victimhood, which developed in the 1970s, and dominates current thinking. Its mantra, ‘Believe the victim’, sums up the present climate of credulity.

 The sociologist Joel Best describes how, ‘as this ideology became accepted by key institutions, it created a victim industry – a set of social arrangements that now supports the identification of large numbers of victims.’[vii] This powerful ideology has seven component beliefs: 

  1. Victimization is widespread;
  2. Victimization has lasting consequences;
  3. It is morally unambiguous: the victimizer is exploitative, the victim innocent;
  4. Victimization often goes unrecognized, even by the victims themselves. As Crown Prosecutor Nazir Afzal is wont to say: ‘They don’t know they’re victims.’
  5. Individuals must be taught to recognize their own, and others’ victimization. This involves a process of re-education. It can amount to a conversion experience, sometimes of a religious intensity.
  6. Claims of victimization must be respected (‘believe the victim’).
  7. The term ‘victim’ can be disempowering. The terms ‘survivor’ or ‘recovering’ are preferable. 

Victim advocates start with initially modest campaigns, addressing clear-cut, egregious examples of exploitation. Having gained social acceptance, they then typically expand the problem’s domain, to include a much wider range of behaviours, which they deem problematic. Thus, for example, we now operate expansive definitions of ‘abuse’, ‘trauma’, and sexual victimization. The definition of what ‘rape’ means in criminal law has also been expanded.

I can’t say how accurate or not is her description of the development of the “victim industry.” However, I did find her description of the “seven component beliefs” strikingly similar to what military justice has experienced over the last few years and the arguments of various victim interest groups. I don’t necessarily say that to indicate a rightness or wrongness of those component beliefs, merely that they seem very familiar. There are several other points in her article that military justice practictioners are likely to find interesting including a good discussion of a study on false memories. The article is worth the five minutes or so it takes to read, if for no other reason than to consider another viewpoint in the ongoing debate on how to balance the interests among victims and accused in sex crime cases.

The weekend is here.

The National Institute of Justice magazine came over the transom this week, with several interesting items. Dr. Jon Gould, et. al., have a lengthy article on wrongful convictions, Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice – over 400 pages.  A bit of his research has been sponsored by the NIJ.  So, NIJ has condensed that to some clips of a video interview with him on the primary reasons for wrongful convictions:  Brady violations, tunnel vision (which I often refer to by its name in psychology of confirmation bias).  There is some consistency with this graph published by the Center for Prosecutorial Integrity.  There are several Gould clips available through YouTube, and there is a transcript available at each link.  Here is part III, they are all less than five minutes.

The first video of the three is where he discusses a general approach.  You might be interested in his term, “a near miss.” In the second video he talks about the top ten significant factors for a wrongful conviction. The second NIJ set of pieces relate to collateral consequences. Sarah Berson, Beyond the Sentence – Understanding Collateral Consequences, and you might check out the National Inventory of Collateral Consequences of Conviction.

 The collateral consequences of a criminal conviction—legal sanctions and restrictions imposed upon people because of their criminal record—are hard to find and harder to understand. Now it will be easier to do both. Congress directed the National Institute of Justice to collect and study collateral consequences in all U.S. jurisdictions, and NIJ selected the ABA Criminal Justice Section to perform the necessary research and analysis.

The Barrister is an English publication full of pithy articles about the mundane to important affecting the legal profession.  Here is a very interesting piece by Barbara Hewson, The cult of victimhood and the limits of the law.  An aspect of her piece is another reference to confirmation bias and the issue of the associated “believe the victim” problems. And finally, not to be accomplished this weekend, Hunter & Else, The Attorney’s Guide to Defending Veterans in Criminal Court, came across the transom in hard copy form.  It is published by the Veterans Defense Project.  I’ve been privileged to have access to the digital version pre-publication.  While the book is directed toward civilian court, there are certainly a number of sections that can be adapted for court-martial.  Evan Seamone has a chapter to himself.

Courthouse news is reporting that MG Buchanan approved Manning’s findings and sentence, and ordered it executed; and hopefully following the Fulton gouge, did not order the punitive discharge executed.

On, on, on to ACCA (where AMJ Lind will likely recuse herself :-)).

Lightning strikes twice at Ft.  Hood as a gunmen has alleged shot and killed three people and himself on the base. Report here.