NMCCA has published an opinion in United States v. Tearman, __ M.J. ___ (N-M Ct. Crim. App. 17 January 2012.  This is a Blazier-Sweeney case.  NMCCA affirmed the conviction.

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) .

SCOTUSBlog notes the following case in the Monday, 20 January 2012, conference list.

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 LA Times, and others are reporting PTA negotiations may be ongoing.

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.

The Supremes issued an opinion today in Perry v. New Hampshire, the eyewitness case.

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.

(Sans TinyURL)  Salon has this piece about United States v. Manning.

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

Here courtesy of Salon are some of the PAO memos.

(Sans TinyURL)

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.

Reuters has the story:

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.

The Supreme Court granted certiorari in a case involving a drug detection dog.

Florida v. Jardines (docket 11-564).

Lyle Denniston of SCOTUSBlog comments here.

Ehlers continues.  In Ehlers v. United States, NMCCA  20080019 (N. M. Ct. Crim. App. 27 Dec 2011)(unpublished op.).   The petition was filed pro se.  Under CAAF rules he has 20 days from the date of service on him to submit a writ appeal petition to CAAF.  See CAAF Rule  27(b).

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.”

The SSgt Frank Wuterich court-martial rolls on. See LA Times coverage here.  The LA Times reports on members selection responses in some key areas:

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].

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

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.

I’m very sorry to report the death of Neil Kabatchnick. Neil was for many years the undisputed leader of the portion of the Court of Federal Claims bar that handles military cases. Many of the greatest victories were his. He was unstinting in his help to new practitioners, and could cite cases by volume and page number. He was personally modest and never sought the limelight, but he had a great nose for injustice and was tenacious on behalf of his clients. Born in Scranton 85 years ago, he served as a yeoman in the Navy.

SCOTUSBlog has put up the courts argument schedule for February and March 2012.  There are a couple of cases that may have military practice interest.  But first, a quote from Kent Scheidegger at crimeandconsequences.

In his general orders of 1782, General George Washington authorized several military decorations to recognize "unusual gallantry" and other outstanding achievements.  He further provided, "Should any who are not entitled to the honors, have the insolence to assume the badges of them, they shall be severely punished."

On General Washington’s 280th birthday, the Supreme Court will hear argument on whether a modern version of the latter provision is constitutional in United States v.Alvarez, No. 11-210.

Mr. Scheidegger has filed an amicus brief on behalf of the Legion of Valor of the United States.

Wed., Feb. 22:

11-210 — U.S. v. Alvarez – constitutionality of Stolen Valor Act’s criminalization of false claims of receiving a military medal or decoration

11-1320 — Blueford v. Arkansas — definition of acquittal, barring retrial of a capital case, after the jury deadlocks on some counts but acquits on murder count in the guilt phase

Mon., March 19:

11-94 — Southern Union Co. v. U.S. — constitutionality of criminal fines not based upon facts found by a jury beyond a reasonable doubt

Wed., March 21:

11-199 — V asquez v. U.S. — scope of harmless error when a defense lawyer’s improper comment about his client’s gjilt is heard by the jury

The ever excellent Federal Evidence Review has this nice summary and analysis of White v. Illinois.

While here they report:

Vacating cocaine distribution conviction and remanding because defendant’s trial included expert testimony by a witness about the contents of the drug identification analysis reported by a non-testifying expert, violating the Confrontation Clause; as the expert’s trial testimony "simply parroted the conclusion" of the non-testifying expert, the testifying expert’s "testimony amounted to no more than the prohibited transmission of testimonial hearsay," in United States v. Ramos-Gonzlez, __ F.3d __ (1st Cir. Dec. 9, 2011) (No. 10–1318).

And on the other confrontation issue they report:

Senate Judiciary Subcommittee hearing airs differing viewpoints on televising Supreme Court proceedings; while there is general agreement that televised proceedings would be beneficial, the primary issue is whether the Supreme Court should voluntarily decide when and how to do so or whether Congress should enact legislation; separation of powers issues and a potential constitutuional showdown are noted; newly introduced legislation (S. 1945) would permit a majority of the Court to authorize televised proceedings.

We now have fairly prompt posting of the audio of argument.  I’m uncertain why video at the Supremes (or CAAF, or  . . .) should be treated any differently.

Cross posted CL/CMTP

Dismissed.

Navy Times is reporting: 

A federal judge has dismissed a class action lawsuit filed by 28 current and former service members for sexual assaults they say happened while they were in uniform serving under defense secretaries Donald Rumsfeld and Robert Gates.