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Secession and security clearances

November 23, 2012 | The Law Office of Philip D. Cave

Here is Bill Henderson on secession “petitions” and security clearances.

DSS personnel have recently received questions from security personnel at cleared contractors about whether contractors should file adverse information reports pursuant to NISPOM paragraph 1-302 regarding cleared persons who sign petitions to allow a state to withdraw or secede from the United States.

It also appears that erroneous statements have been made to the effect that DSS is directing contractors to treat the signing of such petitions as reportable adverse information.

Worth the read-off topic

November 18, 2012 | The Law Office of Philip D. Cave

David Frum has this post in todays The Daily Beast.

“The hard decisions are not not the ones you make in the heat of battle. Far harder to make are those involved in speaking your mind about some hare-brained scheme, which proposes to commit troops to action under conditions where failure is almost certain, and the only results will be the needless sacrifice of precious lives.” -Matthew B. Ridgeway, Memoirs (1956).

At the same time Salon reports on his book, “The Outpost: An Untold Story of American Valor.” The header of the piece is:

Worth the read

November 16, 2012 | The Law Office of Philip D. Cave

I received an initial eRelease of certain chapters from, The Attorney’s Guide to Defending Vets in Criminal Court, soon to be published in hard copy.

Very interesting chapters devoted to PTSD.

Here’s a tie in the United States v. Bales.

It’s character

November 14, 2012 | The Law Office of Philip D. Cave

Here is a cheat sheet for character evidence under the Federal Rules of Evidence.

Why continuing discovery issues

November 2, 2012 | The Law Office of Philip D. Cave

Because rather than punish prosecutors, the courts shift the burden to the defense and provide excuses for the prosecutors.

Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule
Kate Weisburd, 60 UCLA L. Rev. 138.

Padilla and retroactivity

November 2, 2012 | The Law Office of Philip D. Cave

The potential impact of Padilla v. Kentucky is ongoing. Two primary issues.

Is the holding retroactive. The Supremes have that issue before it.

Does Padilla extend the defense counsel obligations beyond immigration consequences?

Shaken baby syndrome

October 18, 2012 | The Law Office of Philip D. Cave

A new piece on this difficult subject.

Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research

Collateral attack

October 1, 2012 | The Law Office of Philip D. Cave

on court-martial convictions.

Here is another case in which a military prisoner has attempted to litigate his trial, and been denied.

Faison v. Belcher (the former Commandant, USDB).

Constitutionality of Art. 119a

October 1, 2012 | The Law Office of Philip D. Cave

The constitutionality of Article 119a, UCMJ, may be headed back to CAAF. But there is no guarantee CAAF will grant a petition.

AFCCA has decided United States v. Cooper. In a short opinion relying on United States v. Boie, 70 M.J. 585 (A.F. Ct. Crim. App. 2011), pet. denied 70 M.J. 416 (C.A.A.F. 2011), the court rejects the constitutional challenge. In Boie the court reviews the status of similar laws around the country.

Bogus science-worth the read?

September 24, 2012 | The Law Office of Philip D. Cave

Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes

Aviva Orenstein

Indiana University Mauer School of Law

Tamara Rice Lave

University of Miami, School of Law
September 7, 2012
Indiana Legal Studies Research Paper No. 209
University of Cincinnati Law Review, Forthcoming

Abstract:
In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused’s prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence. Most critiques of the sex-propensity Rules concentrate on the unfairness part of the Rule 403 equation, but we approach them in a novel way, focusing instead on the absence of empirical support for their so-called probative value. This article examines the empirical support for the probative value of such evidence, revealing that current policy rests on bogus psychology and false empirical assertions. Rules 413-414 typify the regrettable seat-of-the-pants psychologizing on which evidence rule drafters rely too often; the approach eschews a nuanced approach to questions of recidivism and the different types of sex offenders. We argue that rulemakers should look to the disciplines engaged in the empirical study of perpetrator behavior before asserting notions of deviance and recidivism to justify radical changes to evidence law. Finally, we offer specific guidance to judges about how to conceptualize the probative value of evidence of prior sexual misconduct and how to incorporate this knowledge in applying their discretion in admitting sex-crime propensity evidence.