According to this report the Army is investigating “leaks” to stop leaks of unflattering information.

The announcement states that Anonymous stole 2.6 gigabytes of e-mail belonging to Puckett Faraj, a law firm that represents Staff Sgt. Frank Wuterich, who is accused of leading the group of Marines in Haditha. The Web site of Puckett Faraj is not currently loading, and Gawker is reporting that the site was hacked.

A spokeswoman for Puckett Faraj confirmed that the Web site was down but said that she could not confirm or deny whether the site had been hacked.

Gawker reports that:

In announcing the hack, Anonymous stressed that it was attempting to expose and combat the failures of the military justice system, which let a murderer off the hook. Included in the release are “detailed records, transcripts, testimony, trial evidence, and legal defense donation records pertaining to not only Frank Wuterich but also many other marines they have represented.”

Well, yes. But a very cursory examination—we’ve only been able to peruse a tiny percentage of the data released—has turned up a wealth of information about, for instance, sexual assault victims. Puckett and Faraj, the targeted law firm, represented a Marine accused of rape in 2007. So among partner Haytham Faraj’s emails are witness statements from the victims . . . .

Judge Michael Malihi found that the witnesses and other evidence produced by the plaintiffs concerning the President’s place of birth had “little, if any, probative value.”  The judge further concluded that even though the President’s father was not a U.S. citizen, the President himself is a natural born citizen within the meaning of Article II. 

The full opinion can be viewed here.

This is an issue of the “medical” privilege, which there isn’t, compared to the real psychotherapist privilege which there is.

Here is Prof. Colin Miller the great’s summary on EvidenceProfBlog.  I read his blog on a regular basis along with federalevidence review for some excellent, often pithy, and sometimes humorous evidence law.  Check them out.

This Note has shown that a program of targeted killing of U.S. citizens could be  lawful under certain circumstances. Specifically, I propose a system where  the targeted citizen  receives notice and an opportunity for a hearing followed by a JAG determination of his decision not to avail himself of further process and  of  his permissibility as a military target. This would balance the target’s interest in his life against the threat he poses to the lives of his fellow Americans. When we must, we will kill our fellow American before he can kill us.

In 2008, this court issued an opinion, United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008), in which we affirmed one of the findings of guilty to violating Article 118, UCMJ, except for the language “with premeditation,” set aside the finding of guilty to the armed robbery specification, and affirmed the findings of guilty for the remaining charges and specifications.  We set aside the sentence and authorized the CA to hold a rehearing on the armed robbery and the excepted language as it pertained to the one murder specification, and on sentencing.  Id. at 757.  At the conclusion of the findings rehearing, a general court-martial composed of officer and enlisted members found the appellant guilty of armed robbery and premeditated murder.  The appellant was sentenced for all of his offenses to confinement for life, a dishonorable discharge, reduction to pay grade E-1, and a reprimand. 

I take this to be Life, not LWOP; which NMCCA has affirmed.

After carefully considering the record of trial and the parties‟ briefs, we conclude that this court erred in our 2008 opinion to the extent that we authorized a partial rehearing on the sole element of premeditation for the one Article 118, UCMJ, specification.  That portion of the proceeding violated the
appellant‟s constitutional protection against Double Jeopardy.  Accordingly, we set aside the finding of guilty from the rehearing as to Specification 1 under Charge III, and reaffirm our earlier finding of guilty of the lesser included offense of unpremeditated murder.  We find that the remaining findings, including the finding of guilty at the rehearing of armed robbery and the findings affirmed in our 2008 opinion,

After hearing evidence with neither President Barack Obama nor his lawyers in attendance, a state administrative law judge on Thursday did not issue a ruling as to whether Obama can be allowed on the state ballot in November.

Lawyers for area residents mounting “birther” challenges told Deputy Chief Judge Michael Malihi that Obama should be found in contempt of court for not appearing when under subpoena to do so. But Malihi did not indicate he would recommend that and cut off one lawyer when he criticized Obama for not attending the hearing.

“It shows not just a contempt for this court, but contempt for the judicial branch,” lawyer Van Irion told Malihi.

And now, to wrap things up, the “Orly Taitz Delusional Quote of the Day” courtesy of the Orange County Weekly, here, “ Does this look like a behavior of an innocent person? An innocent person would have come to court and showed all the valid documents with the embossed seals, which are verifiable. Instead he is acting like a 5-year-old brat, saying ‘I am afraid of Orly, ‘I want the secretary of state of GA to act like my mommy and protect me from Orly.’ Some leader of a free world . . .”   Let’s see, SEAL Team 6 or GA SOS, I think the CINC’s picked the right protectors of the free world.  There is no such thing as too much birthers.

A Georgia judge has ordered President Barack Obama to appear in court in Atlanta Thursday for a hearing on a complaint that says Obama isn’t a natural-born citizen and can’t be president.

Orly Taitz, the California attorney who brought the legal challenge to Obama’s name on the March Georgia presidential primary ballot, says this is what she has been working for over the last three years.

“This will be 100 times bigger than Watergate,” she said Saturday morning, referring to the scandal that brought down President Richard Nixon in 1974.

“There are high ranking judges and federal officials who are involved in this cover up. The ramifications of this trial will be enormous.”

. . . .

A Georgia resident made the complaint, which is intended to keep Obama’s name off the state’s ballot in the March presidential primary.

And much hilarity ensued.  UPI (here) and the Atlanta Journal-Constitution (here), by the way, say  that the President’s camp informed them that the CINC is unlikely to appear on Thursday.

1.  WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELFINCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.

2.  FOSLER.

Baker writing for a unanimous court finds:

1.  No abuse of discretion as to use of allegedly immunized statements.

We now affirm.  Appellant has not demonstrated that the military judge’s findings of fact are clearly erroneous or that he misapprehended or misapplied the law.  To the contrary, the military judge’s ruling is comprehensive and well reasoned.  The law in this area is settled and sound.  Applying the England factors, we conclude that the military judge did not abuse his discretion in determining that the Government has demonstrated that it did not make direct use of Appellant’s testimony.  While some of the England [United States v. England, 33 M.J. 37, 38-39 (C.M.A. 1991)] factors cut in favor of Appellant, the ultimate question presented in this case is not whether the Government followed best practices (it did not) or whether the decision to prosecute occurred prior to the immunized testimony (it did not), but whether the Government made direct use of the content of Appellant’s immunized statements.  The Government has met its burden in this regard.  Further, although presenting a closer question, the military judge did not abuse his discretion in determining that the Government demonstrated that it did not make indirect use of Appellant’s immunized testimony.

2.  Remanded for additional review in light of Fosler.

Three quick thoughts:

Appellant’s case was subsequently transferred to a new command, prosecution, and investigative team; however, not all of the cautions set forth in Kastigar were followed. 

And so the prosecution nearly lost a case through failure to exercise care.

A caution for defense counsel about trusting the government when the government seeks to immunize and use the client before his own trial is complete.

And the “preponderance” of evidence standard is too lenient in favor of the prosecution in this critical area of compelled self-incrimination.  Why not HBRD?

H/t GGH

Scalia writing for the court begins.

We decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

– It is as covered search the court concludes.  The holding is limited to placement of a device on the car.  The ruling does not address other tracking methods, such as through cell-phone technology.

Sotomayor writes in concurrence; while Alito writes for himself and Ginsburg, Breyer, and Kagan, concurring in the judgment.

Read the opinion, especially the concurrences carefully.  Part of the result here depends how you view the facts and also that the government never raised a theory of admissibility that perhaps might have caught a dissent.

Here is a link to the Orin Kerr article referenced.

The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

Orin S. Kerr, George Washington University – Law School
Michigan Law Review, Forthcoming

Abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.
The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.
Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.
Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

U.S. v. Miranda . . . we note that the convening authority approved the sentence, which included a bad-conduct discharge, and then stated, “In accordance with the UCMJ, Rules for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.” Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority’s action purported to execute the bad-conduct discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model “Forms for Action” in Manual for Courts-Martial, United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006).

We’ve discussed this before here.  CAAF can’t let go of this.  Maybe the Code Committee has a little work?

The appellant assigns one error:  that military judge abused his discretion by admitting, over the appellant’s objection, testimonial hearsay in violation of his Sixth Amendment right to confrontation.  After careful examination of the record of trial, the parties’ pleadings, and oral argument, we conclude that testimonial hearsay was erroneously admitted, but that the error was harmless beyond a reasonable doubt.

NMCCA had previously reversed on a Blazier-Sweeney basis in United States v. Alicea, No. 201100366 (N-M Ct. Crim. App., January 12, 2012) .

Alabama v. Lane.

Issue: Whether a criminal defendant, to whom the Sixth Amendment grants no right to choose which lawyer a court will appoint to represent him in the first instance, nevertheless has a Sixth Amendment right to choose continued representation by that appointed lawyer, such that a court’s erroneous replacement of that lawyer is structural error requiring automatic reversal, even when substitute counsel provides effective representation and the defendant is not otherwise prejudiced.

The court-martial of Staff Sgt. Frank Wuterich in the killing of 24 Iraqis in 2005 is set to resume Thursday afternoon at Camp Pendleton amid indications prosecutors and defense lawyers may negotiate a plea bargain.

The military judge, Lt. Col. David Jones, abruptly recessed the trial Wednesday afternoon, telling the lawyers to discuss "other options." He added he would be available for consultation.

SCOTUSBlog live blog summarizes:  “The Court holds that the due process clause does not require a preliminary judicial inquiry into the reliability of eyewitness id when the identification was not procured under unnecessarily suggestive circumstances arranged by the police.”

Ginsburg writes for the court, with Thomas concurring, and Sotomayor dissenting.

An identification infected by improper police influence, our case law holds, is not automatically excluded.  Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable misidentification,”  Simmons v.  United States, 390 U. S. 377, 384 (1968)[n.1], the judge must disallow presentation of the evidence at trial.  But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.  We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers.  Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.

Our  decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array.  When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at post indictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

Justice Sotomayor begins:

This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial.  Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process.

The Court today announces that that rule does not even “com[e] into play” unless the suggestive circumstances are improperly “police-arranged.”  Ante, at 2, 11.  Our due process concern, however, arises not from the act of suggestion, but rather from the corrosive effects of suggestion on the reliability of the resulting identification. By rendering protection contingent on improper police arrangement of the suggestive circumstances, the Court effectively grafts a mens rea  inquiry onto our rule.  The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion.

Accordingly, it appears Neil v. Biggers, 409 U. S. 188 (1972), and Manson v. Brathwaite, 432 U. S. 98 (1977), contain the primary “totality of the circumstances” analysis on this issue, limited only to law enforcement’s supposedly deliberate actions.

Here is a link to Lyle Denniston’s cut on the case.  He mentions this case:  State v. Henderson, a New Jersey Supreme Court case, decided 24 August 2011.

When this Court adopted the framework outlined in Manson, it recognized that suggestive police procedures may “so irreparably ‘taint[]’ the out-of-court and in-court identifications” that a defendant is denied due process.Madison, supra, 109 N.J. at 239. To protect due process concerns, the Manson Court’s two-part test rested on three assumptions: (1) that it would adequately measure the reliability of eyewitness testimony; (2) that the test’s focus on suggestive police procedure would deter improper practices; and (3) that jurors would recognize and discount untrustworthy eyewitness testimony. See Manson, supra, 432 U.S. at 112-16, 97 S. Ct. at 2252-54, 53 L. Ed. 2d at 152-55.

We remanded this case to determine whether those assumptions and other factors reflected in the two-part Manson/Madison test are still valid. We conclude from the hearing that they are not.

The hearing revealed that Manson/Madison does not adequately meet its stated goals: it does not provide a sufficient measure for reliability, it does not deter, and it overstates the jury’s innate ability to evaluate eyewitness testimony.

In the opinion the NJ court states:

To evaluate whether there is evidence of suggestiveness to trigger a hearing, courts should consider the following non-exhaustive list of system variables[.]

This is a nice checklist of the more important factors to think about with out of court eyewitness identifications.  The court also calls on the appropriate committees to propose new pattern jury instructions to address eyewitness identification concerns.

—————————–

[n.1]  Simmons is a photo array case where the police procedure was challenged.

Military public affairs officials in W case use software that specializes in tracking Twitter.

Here courtesy of Salon are some of the PAO memos.

Smith v. Cain is of importance to military practitioners because of the always issue of access to “CID” notes and case files.  This is a case about discovery. Apparently the investigators’ notes contained conflicting information to that testified to by the star prosecution witness.

The Supremes issued an opinion in Smith v. Cain this morning – 8-1, Thomas dissenting.

Smith requested that his conviction be vacated, arguing inter alia, that the prosecution’s failure to disclose Ronquillo’s notes violated this Court’s decision in Brady v. Maryland, 373 U. S. 83 (1963).  The state trial court rejected Smith’s  Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.  We granted certiorari, 564 U. S. ___ (2011), and now reverse. . . .

The State does not dispute that Boatner’s statements in Ronquillo’s notes were favorable to Smith and that those statements were not disclosed to him. The sole question before us is thus whether Boatner’s statements were material to the determination of Smith’s guilt. We have explained that “evidence is ‘material’ within the meaning of  Brady [on appeal] when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”  Cone  v.  Bell, 556 U. S. 449, 469–470 (2009).  A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,” only that the likelihood of a different result is great enough to “undermine[] confidence in the outcome of the trial.” Kyles  v. Whitley, 514 U. S. 419, 434 (1995) (internal quotation marks omitted).  (Emphasis added.)

We have observed that evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. See United States v. Agurs, 427 U. S. 97, 112–113, and n. 21 (1976). That is not the case here.  Boatner’s testimony was the  only evidence linking Smith to the crime.

Here is a  link to SCOTUSBlog case materials.

The Food and Drug Administration is warning patients about a potential mix-up between powerful prescription pain drugs and common over-the-counter medications like Excedrin and Gas-X made at a Novartis manufacturing plant.

The problem is a result of major manufacturing problems at a Lincoln, Nebraska, facility which was shut down last month. The Swiss drugmaker has recalled bottles of Excedrin, Bufferin and other medications which may have included mixed up pills.

Now the FDA says some of those over-the-counter pills may have accidentally been packaged with powerful prescription painkillers made at the same facility. The opioid drugs are sold by Endo Pharmaceuticals as Percocet, Endocet, Opana and Zydone.

Novartis Consumer Health said the recall, which also applies to bottled versions of NoDoz and Gas-X Prevention, is a precautionary measure.

Florida v. Jardines (docket 11-564).

Lyle Denniston of SCOTUSBlog comments here.

The NMCCA summarizes the history of the case as follows.

In June 2009, this court affirmed the findings and sentence.  United States v. Ehlers, No. 200800190, 2009 CCA LEXIS 229, unpublished op. (N.M.Ct.Crim.App. 30 Jun 2009).  In April 2010, the Court of Appeals for the Armed Forces denied the petitioner’s petition for grant of review.  United States v. Ehlers, 69 M.J. 89 (C.A.A.F. 2010).  The Supreme Court denied a writ of certiorari.  Ehlers v. United States, 131 S. Ct. 536 (2010).  Direct appellate review is complete.

The petitioner now seeks extraordinary relief from this court in the form of a writ of habeas corpus[.]

NMCCA denied the present writ.

On his first appeal Petitioner asserted:

The appellant alleges five assignments of error:  (1) that the evidence is legally and factually insufficient to support the findings of guilty to sodomy and indecent liberties with a child; (2) that the appellant “was
prejudiced before and during the trial by the military’s misconduct” in the form of ineffective assistance of counsel, prosecutorial misconduct, and unlawful command influence; (3) that the offenses alleged constitute an unreasonable multiplication of charges; (4) that the sodomy, assault, and indecent liberties charges are multiplicious; and (5) that the appellant’s adjudged sentence of confinement for 25 years is “unduly disproportionate.”

The family blog indicates that:In April, Edwin filed for Habeas Corpus in the Federal District Court of Southern California.  (And also this rather provocative post, “Today is the last day the Government has to respond to my 40 million dollar lawsuit for Edwin’s wrongful conviction.”)

To go back to the current case — The petitioner now seeks extraordinary relief from this court in the form of a writ of habeas corpus claiming:

(1) the charges and specifications under Article 134 failed to state an offense in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); (2) the petitioner’s Sixth Amendment speedy trial rights were violated by the delay between the first allegations of misconduct and the trial; (3) the military judge abused his authority by failing to dismiss the charges because the petitioner’s right against self-incrimination was violated by a special agent interrogating the petitioner; (4) the prosecution withheld exculpatory evidence at trial; (5) the military judge’s findings were ambiguous; (6) the Naval Criminal
Investigative Service (NCIS) failed to follow established directives by failing to report the allegations at issue to the Family Advocacy Program (FAP); and (7) an NCIS special agent tampered with evidence.

See prior CAAFLog posting here; in particular Dwight “My Liege” Sullivan’s post that there was no SCOTUS jurisdiction over the cert petition, and the rather interesting comments to the post.  There has been an ethics concern over the years about lawyers ghostwriting pro se petitions and filings.  See e.g., this ABA Journal item.   Some jurisdictions seem to require a note that an attorney assisted prepare the brief.  See e.g., this ABA Journal item.

Here is a link to “Military Injustice” about this case.  A post dated 19 September 2011 indicates that White light Productions has agreed to do a story on Edwin and his wrongful conviction by the Marine Corps.  Filming will begin in October.  According to the blog, “The trailer for Edwin’s story is at: http://ireport.cnn.com/docs/DOC-676027.”

On Thursday, prospective jurors were questioned by opposing attorneys. All but one indicated that he had been in combat in Iraq when an order was given to “clear” a house of insurgents; most had lost a Marine in combat.

Asked by a defense attorney, none admitted having “strong” feelings about the war in Iraq.

In other news, [update later].

1. Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions
2. Confrontation Clause: More Notice and Demand Rules?
3. Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations
4. Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause
5. Circuit Split: Admission Of Pre-Miranda Silence
6. Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?
7. More Judicial Criticism of the “Inextricable Intertwinement" Theory
8. Rule Amendments: “Restyling” Federal Rules of Evidence
9. Pending Rule Amendment: FRE 803(10) – Absence of Public Record
10. Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

I’m surprised that the recent MCM amendments didn’t include some sort of ‘notice and demand’ rule under R.C.M. 703(b) regarding “forensic” evidence, reports, and experts.  See item 2.  It seems a simple rule to adopt and would allow for some clarity before trial in trial preparations.  Maybe they assumed it would be a waste of time because a defense counsel will always ‘demand.’ 

I expanded more for the trial practitioner on item 7., here.

Here is a link to last years list.