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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 :-)).

Georgetown Law School.

20-21 May 2014.

CAAF Judicial Conference.

More to follow.

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

PACER where are you?

Came across this today on a case pending before NMCCA.

Yesterday, March 25, 2014, the sexual rights organization, National Coalition for Sexual Freedom (NCSF) filed a “freind (sic) of the court brief” (amicus curiae) in the case of a U.S. Marine. Lance Corporal Gregory Miles was convicted of adultery, attempted sodomy and indecent conduct in a Navy-Marine Corps Court. Miles was confined for 12 months, suffered a pay reduction and a bad-conduct discharge from the Marine Corp.


After last week’s dramatic conclusions to the Sinclair and Tate cases, this story from Vanity Fair reminds us of the so-called “Duke Rape Case,” that arose from a stripper’s false allegation of rape against three members of the Duke lacrosse team. The Vanity Fair story talks about one team member who wasn’t charged with rape, but who is still fighting to get his life back on track.

And from the article:

For what was subsequently adjudged to be his many shortcomings in the handling of the Duke lacrosse case, Durham County District Attorney Mike Nifong was fired from office, was disbarred and was sentenced to one day in jail—the only person who spent any time in jail in connection with the case.

One of my favorite blogs – federalevidencereview has this post today.

On April 4, 2014 the Advisory Committee on Evidence Rules is scheduled to conduct its Spring 2014 meeting, which is open to the public. The Committee will be meeting in Portland, Maine. Recently, the agenda for the meeting was released (a modified pdf of the agenda is here. In addition to the agenda, materials for meeting have been released and are available in a rather large pdf file, here. Of course, the agenda materials were available at the Committee’s website.

Some items of interest include:

II. Proposed Amendments to Rule 801(d)(1)(B) and Rules 803(6)-(8)

The proposed amendments to Rule 801(d)(1)(B) and to Rules 803(6), (7), and (8)were approved by the Standing Committee and the Judicial Conference, and are currently before the Supreme Court. Barring any unforeseen developments, these amendments will become effective on December 1, 2014. The agenda book sets forth the rules and notes as they were approved by the Judicial Conference.

Should the change be affected, they are automatically assimilated into the MRE 18 months after 1 December 2014, absent Presidential action.  See MRE

IV. Possible Amendment to Rule 609(a)

The agenda book contains a memo on consideration of a possible amendment to Rule 609(a) — the rule governing admission of most prior convictions to impeach a witness’s character for truthfulness. The possible amendment is to abrogate the part of the rule that provides for automatic admission of all recent convictions involving a dishonest act or false statement, and to allow some judicial discretion to exclude such convictions by balancing probative value against the risk of prejudice, confusion and delay.V. Consideration of Possible Changes to the Hearsay Exceptions

The agenda book contains the Seventh Circuit’s recent decision in United States v. Boyce, _ F.3d _ (7th Cir. Feb. 13, 2014) (No. 13-1087)]? In that case, Judge Posner in a concurring opinion recommends that the hearsay exceptions for present sense impressions and excited utterance should be reconsidered, because the rationales for these exceptions are not supported either by social science data or common sense. Judge Posner suggests more broadly that the hearsay exceptions are too complex — and that there should be a single exception for hearsay that the trial court finds to be reliable: “essentially a simplification of Rule 807.” The clerk of the Seventh Circuit sent the Boyce opinion to the Advisory Committee for its consideration.

V. Consideration of Possible Changes to the Hearsay Exceptions

The agenda book contains the Seventh Circuit’s recent decision in United States v. Boyce, _ F.3d _ (7th Cir. Feb. 13, 2014) (No. 13-1087)]? In that case, Judge Posner in a concurring opinion recommends that the hearsay exceptions for present sense impressions and excited utterance should be reconsidered, because the rationales for these exceptions are not supported either by social science data or common sense. Judge Posner suggests more broadly that the hearsay exceptions are too complex — and that there should be a single exception for hearsay that the trial court finds to be reliable: “essentially a simplification of Rule 807.” The clerk of the Seventh Circuit sent the Boyce opinion to the Advisory Committee for its consideration.

And VII. Crawford Outline

The agenda book contains the Reporter’s updated outline on cases applying the Supreme Court’s Confrontation Clause jurisprudence.

The New York Times reports:

The Army general prosecuted in the military’s most closely watched sexual assault case has agreed to plead guilty to lesser charges in exchange for the dismissal of accusations that he twice forced his longtime mistress into oral sex, threatened to kill her and her family, and performed consensual but “open and notorious sexual acts” with her in a parked car in Germany and on a hotel balcony in Tucson.

h/t D_P.

In a comment the other day about Tom Jasper’s problem (note: I consider him a friend), someone said there was another story out there.

Could this be it.

The top Army prosecutor for sexual assault cases has been suspended after a lawyer who worked for him recently reported he’d groped her and tried to kiss her at a sexual-assault legal conference more than two years ago.

I have frequently recommended blog as daily reading.  The author even includes reference to military appellate cases of interest.  So AFCCA has released an (unpublished) opinion in United States v. Leps, and its a dirty business.

AFOSI agents asked the appellant for consent to search his on-base home. The appellant did not consent to a search. AFOSI agents went to his home and examined the outside of the home and the surrounding open space and public access areas. A residential trash bin labeled with the commercial trash disposal company’s logo was located adjacent to the appellant’s carport. AFOSI agents, after conferring with legal counsel, conducted a warrantless search of the trash bin and found paraphernalia associated with illegal drug use. AFOSI agents then secured a search warrant for the home and searched the home, discovering further evidence of drug use.

Slip op. at 2 (emphasis added).  As Zach said, of Wicks,  “Getting a warrant isn’t hard, and getting a military search authorization is even easier.”  Anyway, not surprisingly, the accused sought to suppress evidence at trial, the military judge said it was OK, and AFCCA twice times says it’s OK.  Will CAAF take it?  Well, that possibility exists if Mr. Hall is correct and CAAF reads Jardines.  First what does Mr. Hall say.

Defendant had no reasonable expectation of privacy in a trash container next to his carport of his base housing. “When the AFOSI agents arrived at the appellant’s home, the trash bin was upright on the grass area immediately adjacent to the front right corner of the carport.” Applying Dunn, this was not curtilage. United States v. Leps, 2014 CCA LEXIS 91 (A.F. Ct. Crim.App. February 19, 2014). [This is completely wrong, and the court doesn’t even cite Jardines, SCOTUS's real residential curtilage case. This clearly was curtilage because the trash wasn’t yet at the street. What a disappointment this court turns out to be as a guardian of the Constitution.]

Note to audience and trial judge, the accused, SrA Leps was tried in January 2013, and Jardines was decided in March.  We lightly referenced Jardines on 8 January 2012 here.  I think it fair to believe Mr. Hall is talking about Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495, 2013 U.S. LEXIS 2542 (2013).  Jardines is a drug dog on the porch sniffing at the front door case – bad boy, bad doggie. Consistent with Dunn, and Sotomayor argues Kyllo, the court finds error.

“This [Fourth Amendment] right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.  133 S.Ct. at 1414 (emphasis added).

The court then says that the porch is a “classic exemplar” of what is protected.  I think Mr. Hall’s point, and that of Jardines, is that Leps’s trashcan was still within the curtilage based on the facts.  This seems buttressed in light of a couple of AWOLs.

1.  The Leps court calls upon United States v. Dunn, 480 U.S. 294 (1987) for factors to determine “curtilage.”  Slip op. at 10.  The Supreme Court does not cite to Dunn in Jardines.

2.  Another case relied on in LepsCalifornia v. Greenwood, 486 U.S. 35 (1988), would seem to be distinguishable.  The court found the trashbag in Greenwood “was left for collection outside the curtilage of a home.”  486 U.S. at 39-44 (emphasis added).  Jardines does not cite Greenwood either.

I will leave you to determine the full extent of the trash talk.  I will also leave you with these other points.

I think Mr. Hall meant to say curb.  But street probably works just as well.

The court in Jardines said, “We therefore regard the area “immediately surrounding and associated with the home” –what our cases call the curtilage–as “part of the home itself for Fourth Amendment purposes.”  133 S.Ct. at 1414.

And, “While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.”  133 S.Ct. at 1415.

I am loath to do a Zach, but I will make a cautious prediction that CAAF will do one of two things – a summary remand for consideration in light of Jardines, or grant and decide.  CAAF has not issued a relevant opinion since Jardines was decided.  I note CAAF approves of Greenwood.  See United States v. Springer, 58 M.J. 164, 169, n.2 (C.A.A.F. 2003); United States v. Richter, 58 M.J. 213 (C.A.A.F. 1999)., each referencing the “outside the curtilage” language.

While it looks like we are moving toward an interesting showdown over Sen. Gillibrand’s Military Justice Improvement Act, we should not lose sight of the fact that her main opponent, Sen. McCaskill has a competing bill floating out there. S. 1917 provides some additional tweaks to the military justice reforms that were passed in the FY14 NDAA. There are several interesting proposals not the least of which is this one:

(a) Additional duty of Special Victims’ Counsel

In addition to any duties authorized by section 1044e of title 10, United States Code (as added by section 1716 of the National Defense Authorization Act for Fiscal Year 2014), a Special Victims’ Counsel designated under subsection (a) of such section 1044e shall provide advice to victims of sexual assault on the advantages and disadvantages of prosecution of the offense concerned by court-martial or by a civilian court with jurisdiction over the offense before such victims express their preference as to the prosecution of the offense under subsection (b).

(b) Consultation with victims regarding preference in prosecution of certain sexual offenses

(1) In general

The Secretaries of the military departments shall each establish a process to ensure consultation with the victim of a covered sexual offense that occurs in the United States with respect to the victim’s preference as to whether the offense should be prosecuted by court-martial or by a civilian court with jurisdiction over the offense.
(2) Weight afforded preference

The preference expressed by a victim under paragraph (1) with respect to the prosecution of an offense, while not binding, should be afforded great weight in the determination whether to prosecute the offense by court-martial or by a civilian court.

(3) Notice to victim of lack of civilian criminal prosecution after preference for such prosecution

In the event a victim expresses a preference under paragraph (1) in favor of prosecution of an offence by civilian court and the civilian authorities determine to decline prosecution, or defer to prosecution by court-martial, the victim shall be promptly notified of that determination.

This is interesting for several reasons. First, it made me go back and check the text of the new Article 6b, UCMJ. In doing so, I found an omission I had overlooked when compared with 18 U.S.C. 3771, the Crime Victim’s Rights Act (CVRA). As Zach observed, the new Article 6b seems based in large part on the CVRA. While the CVRA and Article 6b afford crime victims the same rights, the CVRA provides that:

Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.

That phrase, or its military approximate, appears nowhere in Article 6b. Judging from the proposal in S.1917, it seems that the intent of some in the Senate is to subject prosecutorial discretion in the military to the wishes of the victim, even if his or her wishes are not binding.

This brings me to my second point. While it seems clear “who” is a victim under the text of Article 6b and 18 U.S.C. 3771, it’s less clear “when” a person becomes a victim for the purpose of the statutes. The DOJ’s Office of Legal Counsel addressed this issue in an opinion, and determined that the rights under the CVRA attached only after a complaint, information, or indictment was filed.

Nevertheless, the definition’s requirement that a crime victim be harmed as a result of the commission of a Federal “offense” naturally suggests that a person’s status as a “crime victim” can only be determined after there has been a formal decision to charge a defendant with a particular Federal offense. Under this reading, the earliest that a “crime victim” under the Act could be identified would be upon the filing of a criminal complaint—that is, at the earliest point at which there is a sworn written statement of probable cause to believe that a particular defendant committed an identified Federal offense, see Fed. R. Crim. P. 4, and hence the first point at which it is possible with any certainty to identify a “crime victim” directly and proximately harmed by the commission of that offense.

In other words, if there is no criminal proceeding ongoing (i.e. something more than an investigation) then there is no “victim” of a crime. In the military context, I think we would set the initiation of criminal proceedings at the preferral of charges. Prior to that, there is no criminal case against the accused. Against this backdrop, the proposal in S. 1917 seems quite strange. How could a “victim” express his or her desires concerning the venue in which a case is prosecuted if there is no existing prosecution giving him or her status as a “victim?” Good luck wrapping your head around that one.

As a side note, this interpretation of when a “victim” becomes a victim has implications for his or her ability to consult with the prosecutor. From the OLC opinion:

Similarly, the wording of the CVRA’s “reasonable right to confer with the attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5), suggests that the right is intended to apply only once the Government has initiated criminal proceedings. The phrase “in the case” implies the pendency of a judicial proceeding.
Thus, to the extent any rights (discovery, etc.) derive from a “consultation” right with the Government, none of that should apply under the OLC interpretation until after initiation of a criminal action. Going forward, it will be interesting to see whether the CAAF and service courts of  appeal go a different direction from the Federal courts of appeal in construing the statutory scheme. There’s certainly reason to believe that they could.

On 31 January, the NMCCA decided United States v. Easterly, and issued an unpublished decision.

BLUF:  The military judge erred in denying a defense UCI motion, which:

The appellant specifically avers that the Heritage Brief given at Marine Corps Air Station (MCAS), Beaufort, by the Commandant of the Marine Corps (hereinafter “CMC”) and subsequent White Letters, issued by the CMC, tainted the potential members pool and thereby prevented the appellant from receiving a fair trial.

But the error is harmless BRD on these facts.

At trial all agreed that the defense had shown “some evidence” sufficient to shift the burden to the prosecution, in this sexual assault related case.

The military judge further stated: “With the above factors in mind, defense counsel[’s] motion to dismiss based on unlawful command influence is denied. Defense requests for other extraordinary remedies, short of dismissal of charges, are also denied.” Id. at 70. The trial defense counsel then specifically asked the military judge if he was finding no actual or apparent unlawful command influence, and the judge answered in the affirmative. Id.

Despite stating that his ruling applied to both, the military judge’s findings lack any reference to either actual or apparent unlawful command influence or their respective legal tests. Furthermore, despite the fact that the military judge earlier agreed that the defense had met its initial burden of offering “some evidence” of unlawful command influence, his findings do not address how the Government effectively met its burden of either disproving the predicate facts, proving that those facts did not constitute unlawful command influence, or proving that any unlawful command influence would not affect the fairness of the proceedings. [United States v.] Biagese, 50 M.J. []at 151 [C.A.A.F. )]. In these regards, the military judge clearly erred.

Appellant did not push the issue of actual command influence, likely because on the facts there is insufficient evidence.  NMCCA assumed an appearance problem, and moved to address whether or not the prosecution had satisfied their burden.  The court explains:

The best indicator of the lack of apparent unlawful command influence on the merits is the fact that the appellant was acquitted of both specifications of rape, the most serious offenses on the charge sheet and a principal focus of the CMC’s comments during the Heritage Brief and White Letters.

In other words, if the result favors the Appellant the government has met its burden – on appeal.  It’s harmless error BRD.  But what if Appellant had been convicted, and . . . So the issue remains alive for another day and another accused who is convicted?  

I’m reminded of a comment made by a judge while litigating one of my UCI motions recently — “well people are still being acquitted.”  I like this judge and his comment was made in a light-hearted fashion, so the comment shouldn’t be taken out of context.  And the client was acquitted.  But the comment and Easterly do raise something of an interesting question.  At what point does the conviction rate become evidence of UCI, if at all?  Statistical analysis has been used in other areas of the law, particularly to try and show discrimination for example.  If I recollect, the AF stats at the time of our motion showed a 57% conviction rate for sexual assaults.  I don’t recollect seeing a comparative rate(s).  

Anyway, the Easterly court then assessed what impact if any there was from potential UCI during the sentencing phase of trial.  Appellant was sentenced to, “be reduced to pay grade E-1, to forfeit all pay and allowances, to be confined for a period of two years, and to be discharged with a bad-conduct discharge.”

The appellant was sentenced for committing the following misconduct: making a false official statement; assault consummated by a battery; and, two specifications of adultery.  These offenses carry a maximum punishment of seven years and six months confinement, reduction to pay grade E-1, total forfeitures, and a bad-conduct discharge. During argument, the trial counsel asked for the maximum sentence; the appellant, in his unsworn statement and argument on sentence made by the trial defense counsel, did not specify a particular punishment but asked for an appropriate sentence.  (Yes, emphasis added.)

In determining no UCI impact on sentencing the court seems to consider the following;  Appellant was guilty of what he was convicted of, the Appellant conceded as much during sentencing, he didn’t get the requested maximum punishment.  And there was no evidence of any adverse impact in presenting a sentencing case, such as “the lack of any indication in the record that any witnesses failed or refused to testify on the appellant’s behalf because they felt intimidated or discouraged from participating in the trial.”

So, the question remains, what if the accused were found guilty, and got the max or close to it?  I’m not convinced Easterly actually resolves the issue of how the government has or has not rebutted the issue at the time of trial.  Certainly the lack of evidence that the defense has not been interfered with would be relevant.

The January issue of Appellate Issues from the Council of Appellate Lawyers, is now online.  Of particular interest:

Honing the Knife: Editing Effectively to Improve Legal Writing, by Richard C. Kraus.

Handling the Difficult Oral Argument, by Nancy M. Olson.

Effectively Using Standards of Review, by Gaetan Gerville-Reache.

Making Appellate Briefs More Effective: Selecting Issues and Structuring the Argument, by Deena Jo Schneider


Today the Supreme Court issued a decision in Burrage, (but sadly declined to grant certiorari in two other criminal law cases). which SCOTUSBlog summarizes as:

If a drug user dies or is seriously injured after taking in multiple substances, a dealer who supplied one of the items can get an enhanced sentence only if that one drug was the actual cause of the death or injury, the Supreme Court ruled unanimously on Monday.  The decision in Burrage v. United States flatly rejected a federal government argument — based on the notion that addicts often use more than one substance — that it would be enough if that one drug played a role in the result, even though it did not itself cause that outcome.

Yes, the issue of distributing drugs followed by the injury or death of the recipient has been a military issue not too long ago.  United States v. Bennitt, No. 12-0616/AR, 72 M.J. 266 (C.A.A.F. 2013) (opinion) (CAAFlog case page).

The Court declined certiorari in these two cases.

Warger v. Shauers, 13-517, Issue: Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonest during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.
Robinson v. Drummond, 13-496, Issue: Whether the Sixth Circuit violated the Antiterrorism and Effective Death Penalty Act by holding that “some form” of Waller v. Georgia‘s specific four-part test was clearly established for partial courtroom closures and that a state court could unreasonably apply the modified test in the partial-closure context.
Keep in mind that denial of certiorari does not mean you don’t have a valid issue.  There are numerous reasons an appellate court with discretionary jurisdiction (also like CAAF) does not grant in a particular case, but might later.  From an admittedly older edition:
[D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter “of sound judicial discretion.” A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore, all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated. United States v. Carver, 260 U.S. 482 (1923). See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)(“Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner”).
See, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.  Similarly, there are many reasons why Congress or other form of “legislator” might not act on a subject.  And lack of action is not approval.  Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

This medical motto is equally applicable to trial practitioners.  One way to avoid harm is not to put your client out in the media – to avoid this:

Marine Corps Col. Daniel J. Daugherty ordered the TV networks on Wednesday to provide a portion of footage that he deemed was not duplicative of other interviews and testimony from the female midshipman. The footage is sought by attorneys for Midshipman Joshua Tate of Nashville, who is facing a March court-martial on charges of aggravated sexual assault and making a false statement. . . . .  Interviews with both networks were recorded in 2013, before criminal cases were initiated against the three midshipmen, . . . CBS aired about 5 minutes of a 45-minute interview with the alleged victim. CNN aired 11 minutes from about 55 minutes’ worth of interviews.

Reported in the Baltimore Sun.  Counsel does observe the likely litigation to appeal the judge’s ruling.

We saw this not so long ago in United States v. Wuterich & CBS, 66 M.J. 685 (N-M. Ct. Crim. Aapp. 2008), 67 M.J. 63 (C.A.A.F. 2008), although it was the government seeking unaired footage from CBS.  I suppose CBS legal department will be getting like us and just having to change names in the caption and some of the facts.  CAAF in Wuterich ordered the military judge to conduct an in-camera review before deciding what might be released to the prosecution.  You will recollect that the case enjoyed a rather tortuous history, not all related to the media discovery issue.

a.  Delay, delay, delay.

b.  And maybe some inconsistent statements prior to testimony under oath at an Article 32, UCMJ, investigation – a point that remains to be seen.

c.  Candidate for 2014 top ten.