NMCCA has issued an unpublished opinion in United States v. McGuire.

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.

Mike Dreyfuss, My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad, 65 Vand. L. Rev. 249 (2012).  Because . . .

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.

The NMCCA has issued a published opinion in United States v. Walker.  This case began its appellate life with a death penalty sentence.

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,

There is an interesting exchange going on between, among others, Laura Pitter (HRW), Steve Vladek, Ben Wittes and our own Cully Stimson about the fairness of the current military commissions system at Gitmo, in particular the al-Nashiri trial. Here is the latest from Vladek at Lawfare.  Here is Cully’s post on the Heritage blog comparing commissions and courts-martial.  And, in reverse order, here is Laura Pitter’s original Salon.com post that started the exchange, titled “Guantanamo’s system of injustice.”  Interesting debate.

Here is a link to the letter from the Georgia Secretary of State to the CINC’s campaign attorney.   The attorney for the Obama campaign, Michael Jablonski, has apaprently withdrawn from the proceedings after sending the CINC’s birth certificate to Mr. Kemp, but Mr. Kemp is pushing forward with Ga.’s hearing on the CINC’s ability to be on the Ga. ballot.  The AJC reports on the hearing, here:

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.

The birfers strike again, see Atlanta Ledger-Enquirer story here.  If you don’t already know:

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.

CAAF has issued its opinion in United States v. Morrisette.

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?

Wuterich guilty plea to negligent dereliction of duty here.

H/t GGH

SCOTUS decided United States v. Jones today.  This is the GPS placed on the car case.  I had a GPS device case some years ago, so it could happen in a court-martial case.

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.

Interesting summary dispo from CAAF:

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?

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.