Articles Posted in Up Periscope

There appears to be a split shaping up between the circuits over the use of a surrogate to introduce autopsy reports.  Thanks to federalevidence.com here are the basics.

[Are] autopsy reports are admissible under the Confrontation Clause. The First Circuit has held that autopsy reports may be admitted without the testimony of the report author consistent with the Confrontation Clause. See United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (autopsy reports as public reports were “not subject to the strictures of the Confrontation Clause”) [Note, case decided before Melendez-Diaz]; United States v. De La Cruz, 514 F.3d 121, 133-34 (1st Cir. 2008) [n.1] (“An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford.”), cert. denied, 129 S.Ct. 2858 (2009); see also First Circuit Identifies And Discusses Crawford Confrontation Clause Open Issues.

With that FE provides the case that sets the conflict, and it’s a surrogate case.

Oooops, I meant H.M. the Queen v. Delisle.

The Winnipeg Free Press reports on a cross-border military justice case.  It begins,

Putting an accused navy spy on trial represents a potential legal and intelligence nightmare for the . . . government, one where it will have to resist the temptation to dispense justice in secret, say experts.

Registration for the Virginia CLE 42nd Criminal Law Seminar, is now online.  You can attend live on 3 or 10 February.  Note, VA will begin requiring a number of hours be live.  They are cutting back on getting the full 12 online.

The USCAAF Judicial Conference is scheduled for 7 – 8 March 2012.  Hopefully they will give the option of receiving hard copies of handouts so that VA lawyers can get CLE credit.   The VA Bar has been giving problems over the last few years about credit for the conference based on a lack of handouts.

The NMCCA continues to pump out the Fosler cases with affirmances.

But today there’s an interesting opinion in a urinalysis case.  United States v. Alicea  It’s unpublished. It’s about the use of documents and testimony from an expert about a urine sample tested by the Navy drug lab.

NMCCA found the military judge abused his discretion, and the error was not harmless beyond reasonable doubt.

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights.

She has this interesting post, "Why Can’t Jurors Distinguish “Knowing” From “Reckless” Misconduct?”

Recently, The National Law Journal carried a story about an important gap that has emerged in jurors’ ability to understand the criminal law.  According to the original study, described in the article “Sorting Guilty Minds” in the NYU Law Review, jurors have a difficult time distinguishing between two of the culpable mental states under which perpetrators commit crimes:  “knowledge” and “recklessness.”  In this column, I will offer an account of jurors’ difficulties that locates the problem in the ambiguity of the criminal law itself, rather than in the thinking processes of fact-finders.

Fayobserver reports that as of 09012012:  Nearly 11 weeks after a panel of judges heard arguments in Timothy Hennis’ appeal, a decision still has not been made.

El Paso Times reports:  A Beaumont laboratory technician was confronted on Tuesday by a teenage family member who said he had sexually abused her since she was 5 years old.  Sgt. Michael Robertson’s court-martial on charges of sodomy and sexual assault started Tuesday at Fort Bliss. The sodomy charge resulted from an incident in which Robertson allegedly forced his accuser to perform oral sex when she was 5. Robertson pleaded not guilty to all charges and specifications. He faces a life sentence if convicted on the sodomy charge

L.A. Now reports on 09012012:  The court martial at Camp Pendleton of a Marine staff sergeant accused in the deaths of 24 Iraqis in Haditha in 2005 began Monday with sharply contrasting views of the defendant.  While CBS News reports:  A Marine sergeant charged in the biggest criminal case against U.S. troops in the Iraq war made a series of fatal assumptions and lost control of himself when he and his squad killed 24 Iraqis, including unarmed women and children, a military prosecutor said Monday.

(Sans TinyURL)

Smith v. Cain is of importance to military practitioners because of the always issue of access to “CID” notes and case files.  This is a case about discovery. Apparently the investigators’ notes contained conflicting information to that testified to by the star prosecution witness.

The Supremes issued an opinion in Smith v. Cain this morning – 8-1, Thomas dissenting.

Week Ahead.

LA Times reports that a panel of two officers and four enlisted have been selected for United States v. Wuterich.  Merits to begin Monday.

Week Behind.

NMCCA has pumped out quite a few opinions recently.  The trend of affirming GP Fosler cases appears to continue.  And as to the remanded Fosler GP trailers you will be seeing this language.

Regarding the remanded question, we again affirm the findings of guilty, pursuant to the appellant’s pleas, for the reasons set for in United States v. Hackler, ___ M.J. ___  (N.M.Ct.Crim.App. 22 Dec 2011).

No. 10-0649/AF.  U.S. v. Dean E. THOMPSON. CCA 37380. Review granted on the following issue:

WHETHER APPELLANT RECEIVED POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLANT HAS MADE A COLORABLE SHOWING OF POSSIBLE PREJUDICE.

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the granted issue. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.