Articles Posted in Up Periscope

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In late summer 2014, my client and another were accused of conspiring with each other and committing sexual assaults on a single complaining witness.  The events were alleged to have happened at a party at a local hotel.  As the investigation progressed six others were implicated in an alleged group sexual assault.

My client and his alleged co-conspirator had charges preferred in January 2016 and in April they were arraigned at a general court-martial.  We then experienced many delays because of funding issues until trial in February 2018.  Over the months, the six others had their allegations resolved at summary court-martial, nonjudicial punishment, and administrative separation—all for offenses collateral to the alleged sexual assaults.

As our investigation and preparation progressed we were able to develop what we believed to be a motive to fabricate a false allegation of sexual assault, for what psychologists call secondary gain (to police and lawyers that’s called motive).  The complaining witness was in trouble: she’d lied to command personnel about where she was going that day, and like the eight accused’s she violated various rules of alcohol and fraternization–she and others were about to undergo a surprise breathalyzer that night.  Her answer was to claim sexual assault for what we believed to be consensual group sex.

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Let’s take a look at United States v. Criswell, a case decided by the Army adverse to the appellant, and now pending review at CAAF, on the following issue.

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

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When the Congress, the media, and commanders called for a crackdown on military sexual assaults, the fear among the defense bar was the specter of unlawful command influence.  Most of the cases have focussed on pretrial and post-trial.  But the biggest fear was realized in United States v. Schloff, a case I did at trial and on appeal.

“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . …. was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process. “

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Why Military Courts Won’t Prevent The Next Texas Church Shooting, in Stars & Stripes, repeated in Task & Purpose.

Former airman Devin P. Kelley had choked his wife and put a gun to her head. He’d fractured her baby’s skull. He’d made threats to his commanders and he’d been committed to a mental hospital. Those acts foretold Kelley as a potential killer, experts say, and make the Air Force’s failure to enter his name into an FBI database especially egregious.

For those looking for the future of changes to the UCMJ and the MCM, there are a number of seeds in this article.

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The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the case, and ordered them to appear before him in person here at Guantánamo or by video feed next week.

At issue was Baker’s authority to excuse civilian, Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case of because of a secret ethics conflict involving attorney-client privilege. Also, the general refused a day earlier to either testify in front of Spath, or return the three lawyers to the case.

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Black sailors more likely than white sailors to be referred to court-martial, report says

Brock Vergakis, The Virginian-Pilot, 7 June 2017.  The VP summarizes:

Black sailors were 40 percent more likely than white sailors to be referred to a court-martial over a two-year period examined by an advocacy group that focuses on military justice. . . .

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Military Times is reporting–House lawmakers Wednesday overwhelmingly passed new rules making the secret recording or unauthorized sharing of nude photos a crime under military law, in response to the Marine Corps United scandal earlier this year.

Rep. Martha McSally (R-Ariz.) this week will introduce legislation meant to fight nonconsensual sharing of “private, intimate media” in the military, following outcry over the Marine Corps’ nude-photo-sharing scandal.

The Protecting the Rights of IndiViduals Against Technological Exploitation, or PRIVATE Act, “defines when photo sharing is a crime, which is not clear in current law, and addresses questions related to freedom of speech and intent,” McSally said in a letter seeking cosponsors for the bill.

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so starts a post at wrongfulconvictionsblog–Junk Science Reigns ____ So Much for True Science in the Courtroom.

[W]hen the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published

people thought we might see a true effort to address “junk science being used to convict innocent people.”

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The Washington Post has an article by Orin Kerr on a report in the New York Times about a bill introduced in Congress to change or clarify the “mens rea” required in federal criminal statutes.  I probably should not comment on where the proposal may have come from. It is proposed that:

§ 11. Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

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