Articles Posted in Uncategorized

Andrew McCarthy writes in National Review about the recent NY terror case and President Trump’s off-the-cuff comments.  In a well-reasoned piece, he makes the following point.

Yet, just as law-enforcement officials must respect the policy judgments of their political superiors, the political authority must respect the need for independent administration of justice in individual cases. The president undoubtedly has the power to interfere in criminal cases that are brought under his authority. He abuses that power, though, when he fails to affirm the rule of law and the public integrity of the judicial process.

The thought is equally applicable to other politicians and government leaders, and here I’m thinking of the connection to comments about military sexual assault issues and cases.  Of course, the legislature has a duty to protect society, identify what should be considered criminal conduct, and set out a process for holding criminals accountable to society.  But in the process, their oath of office requires them to “affirm the rule of law and the public integrity of the judicial process.”  When people decide that the law or its application is unfair (rightly or wrongly) disrespect for the law follows.

Other circuits have held that a prisoner may file a petition for a writ of habeas corpus if his sentencing court has been dissolved.” Id. at 1093 (quoting Prost v. Anderson, 636 F.3d578, 588 (10th Cir. 2011) (explaining that, for military prisoners, “the resort to § 2241 is the norm rather than the exception . . .

due to the evanescent nature of court-martial proceedings:

the sentencing court literally dissolves after sentencing and is no longer available to test a prisoner’s collateral attack”)).

I have noticed an increase is improper prosecution arguments over the last five years — connected I think to sexual assault cases mostly.  So here is an article of interest.

Combating Prosecutor Misconduct in Closing Arguments, Oklahoma Law Review, Vol. 70, No. 3, Forthcoming

From the abstract:

THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

Yes, it is.  In dissenting to the Coast Guard Court of Criminal Appeals majority opinion in United States v. Decker, the dissenting judge says:

This is a vexing case; the kind that sexual assault prevention training seeks to avoid. I agree with the majority’s resolution of Assignment of Error III, and I agree that the evidence presented in this case is legally sufficient to support findings of guilty to the specifications of Charge I and to Charge I. I would disapprove the findings of guilty to the specifications of Charge I and to Charge I, because I have a reasonable doubt that CG was incapable of consenting to the sexual act due to impairment by alcohol or any other substance; or unconscious, or otherwise unaware that the alleged sexual act was occurring. Considering all of the evidence presented, it is just as likely that CG was conscious, aware, and capable of consenting, but does not remember because of an alcohol-induced blackout.

Exactly!  I would suggest that 90% of military sexual assault cases involve both parties having drunk alcohol and claiming a lack of memory or ‘I was too drunk.’  The effects of an alcohol blackout on memory are well known and scientifically established.  What is also well known is that people in an alcohol blackout can still act and talk “normally” as perceived by others.  The dissenting judge’s discussion is a little more complex because of the way the offense was charged and the approach taken by the prosecution.

Crowder’s next orders took him to Fort Yates, North Dakota, where the United States Army attempted to suppress the religious Ghost Dance movement. While stationed at Fort Yates, Crowder proved successful in his legal defense in three court-martial proceedings. His actions were noted by Army superiors and after being promoted to the rank of captain, Crowder was reassigned to the Judge Advocate Generals Corps in 1895.

Says a piece in the Neosho Daily about Enoch Crowder.

BG Crowder is well known to historians of military justice for the sometimes contentious but always entertaining Ansell – Crowder dispute on military justice and see here.

https://www.court-martial.com/dubay-evidentiary-hearings-on-appeal.html

Whether or not a sentence is appropriate for the crime convicted of and the character of the person convicted is a frequent issue on appeal.  Less frequently there is an issue of sentence disparity between co-actors or co-accuseds.

The recent ACCA decision in United States v. Martinez (Sept. 2017), lays out the law fairly well on how to analyze and argue the issue.

In this case we hold appellant’s sentence was appropriate despite his assertion of sentence disparity with his coactor. While there is a not a bright-line test for when a sentence is highly disparate, the law is clear that sentence disparity is only one of many aspects of sentence appropriateness. We therefore hold that even if appellant’s sentence was highly disparate with his coactor’s sentence, appellant’s sentence was still appropriate for his crimes.

The military already has rules and regulations about membership in certain hate groups.  The tragic events at Charlottesville are likely to garner more attention to the issue of military personnel and hate groups.

From Task & Purpose.

James Alex Fields Jr., the 20-year-old Army basic training wash-out accused of running down counter-protesters demonstrating against hate groups in Charlottesville, Virginia, may not have been the only U.S. military veteran marching under the banner of white nationalism this weekend, Splinter reports.

There is increasing attention to the possibility that DNA “evidence” at the scene of an alleged crime is just too good and may implicate the innocent.

Touch-trace DNA is the issue.

Here is an interesting discussion that may help form an argument to exclude DNA evidence or address it with the fact-finder at trial.