Articles Posted in Up Periscope

Here is a link to the new “order” requiring sexual assault cases to be disposed of at at least the O-6 level.

I have from time to time filed writs of error coram nobis, most recently in United States v. Graner.

Courtesy of CrimProfBlog here is an excellent case reviewing the writ of error coram nobis.  The court discusses the history of the writ and the three part test to considered.  Note they cite extensively to United States v. Denedo.

The  writ  of  error  coram  nobis  is  of  ancient  lineage, tracing its roots to sixteenth century English common law.  See Sawyer,  239  F.3d  at  37.  Its  original  purpose  was to  promote respect for the judicial process by enabling a court to correct technical  errors  in  a  final  judgment  previously  rendered.  See United States v. Denedo, 129  S. Ct.  2213,  2220 (2009).  In the United States, the office of the writ has expanded well beyond the reopening of a final judgment to correct technical errors.  See id.  In federal criminal cases, the writ is now available as a remedy of last resort for the correction of fundamental errors of fact or law.  Trenkler v. United States, 536 F.3d 85, 93 (1st Cir. 2008).

Not sure, that’s the conclusion of a study done by the National Research Council.

h/t Prof. Berman at Sentencing Law & Policy

You need to know about collateral effects of a court-martial conviction:

Voting

Firearms

The government wants to offer data from a computer or some other mechanical or recording device.

Can a NCIS agent testify about the contents.  No.  That violates the best evidence rule, Mil. R. Evid. 1001.

Courtesy of federalevidence.com here is a link for a recent case dealing with GPS information:

Not sure the value – but I’m tracking the impending release of this publication:

Apparently written for civilian attorney’s representing current or former military personnel, it may well have resources, ideas, and guidance for the military practitioner.

Major Evan Seamore, Chief of Military Justice for the U.S. Army Maneuver Center of Excellence, Fort Benning, GA, is in there in Chapter 13.

Quite a few cases, especially the sexual assault ones arriving recently have involved text and chat messages as potential evidence against the client.

As is to be expected, most of the time the investigators do not seize and clone the phone to preserve evidence (although I am dealing with one CID office at Fort Lee that has done that with one of several phones).  This is a failure to investigate, and as always is to be expected.  What they usually do is photograph the “relevant” by their definition texts on the phone screen and nothing more.

Keep in mind that Mil. R. Evid. 106 AND 304(h)(2) apply to these texts and chats.

Warrant for DNA failed to show probable cause because it was based on mere conclusions. On remand, however, the state is free to use inevitable discovery to validate it. State v. Jenkins, 2012 S.C. App. LEXIS 84 (March 28, 2012):

Nevertheless, the State argues that because this case involves a sex crime, the magistrate could reasonably have inferred the victim was the source of the information. We disagree. The law does not allow the State to justify a bodily intrusion on the possibility that a magistrate made a correct inference as to the source of the information in the affidavit. Rather, "[m]ere conclusory statements which give the magistrate no basis to make a judgment regarding probable cause are insufficient." Smith, 301 S.C. at 373, 392 S.E.2d at 183. Moreover, the complete absence of a source for any of the information makes a variety of scenarios possible. For example, the detective could have pieced together the information from other officers, the victim’s neighbors, or even an anonymous tip. This is precisely what the law forbids a magistrate from doing. The magistrate’s "action cannot be a mere ratification of the bare conclusions of others." Id. (quoting Gates, 462 U.S. at 239).

Note: One of the benefits of knowing the Fourth Amendment is that you don’t file pointless motions to suppress. Most of the time, 95% of the time, the warrant or search is valid. I filed my first motion to suppress in over a year this week on the same ground: The officer alleged it was his opinion evidence would be found in the place to be search without any effort to show probable cause connecting it to the crime under investigation. And, warrants failing on this ground get no good faith exception under Leon’s third ground.

Jessica D. Gabel & Ashley D. Champion, Regulating the Science of Forensic Evidence: A Broken System Requires a New Federal Agency, 19 Texas L. Rev. See Also 19 (2011).

Science has its watershed moments.  In February 2009, the National Academy of Sciences released its much-anticipated diagnosis of and prescription for the problems plaguing the practice of forensic science (NAS Report).   The NAS Report confirmed the low but steady noise that had been creeping in the criminal justice system for more than a decade—with the exception of DNA evidence, much of what is presented as forensic science is not really science at all.  Instead, a large segment of the high-tech pageantry seen on television, and now expected and employed in court, would fail to clear even the lowest hurdles of stringent scientific inquiry.  The NAS Report concluded that forensic science overpromises but underwhelms although such science is routinely used to demonstrate the certainty of a person’s guilt by authoritatively matching evidence from the crime scene or victim to the suspect.

Here is an interesting book.

Here is a review that’s better than I could write.  The book is not about courts-martial.  There are several books that are good reads on military justice.  Here are a couple.