Articles Posted in Up Periscope

Navy Times reports:  Angry that he was not invited to a group dinner, the commander of a Navy flight squadron hurled insults at subordinates and slapped another sailor several times while they were all drinking at a bar in Bahrain, according to documents obtained by The Associated Press.

Stars & Stripes reports that:  The U.S. military on Friday issued a peninsula-wide curfew for all U.S. troops in South Korea, one day after South Korean authorities took custody of a U.S. soldier accused of raping an 18-year-old Korean woman.

“Given the incidents that have occurred over the last several months, I’m reinstating the curfew to assess current conditions, mission requirements, and potential force protection concerns.”

CAAF Daily Journal for 4 October has this entry in regard to the oral arguments scheduled for next week.

In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Andrew S. Effron to perform judicial duties in the above cases, and that Senior Judge Effron has consented to perform judicial duties in the cases under Article 142(e)(1) (A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e) (1)(A) (ii)(2006).

No, I didn’t say that, LTG Mark P. Hertling, USA, Commander U. S. Army Europe did, as reported in Army Times.  (He’s also been talking about troop strength in Europe.)

Soldier discipline has deteriorated to the point where it risks becoming “cancerous,” a senior Army general said Wednesday.

In his remarks he said:

Sun Herald reports:  A chief warrant officer who lead Coast Guard Station Gulfport until last year may be ousted from military service after being convicted on an array of charges in court martial proceedings.

Chief Warrant Officer Brandt Martin was removed from the helm at Gulfport in July 2010 while an investigation into his activities was ongoing. At court martial proceedings in New Orleans last week, a military judge convicted Martin of dereliction of duty, making a false official statement, wrongfully disposing of government property, larceny and soliciting another to commit a violation.

CDR Salamander reports on continued fall out with the Velasquez case from Yoko.

I have previously posted on the current approach of NMCCA to Fosler cases that are being heard by them for initial review.  So far there has not been an opinion in one of the trailer park remands.  Still no “Fosler” out of Army or Air Force or Coast Guard, so no “split” in the “circuits” for CAAF to decide.

United States v. Glover, No. 201100211 (N.M.Ct.Crim.App., 29 Sep 2011) (convicted according to pleas) – Affirmed. No sentence relief.

I think we have enough NMCCA cases to glean their approach, so I’ll stop counting and just note ones that are out of the ordinary.  Of the cases NMCCA has decided so far I’d expect them all to petition CAAF.  But the one of most interest will be Raucher.  Just when we thought it might get easy on the Fosler issues.  That’s because he was charged under a deficient Article 134, UCMJ, specification, but convicted of an LIO.  Had he been convicted of the 134 specification, then under the NMCCA “Fosler jurisprudence” it appears he would have had the conviction set-aside.

I found this case, pointed out by John Wesley Hall at fourthamendment.com to be of interest in light of the ongoing discussion regarding Article 120 and alcohol.  As I’ve noted before, a lot of sexual assault awareness training teaches that a person who takes one drink “can’t consent” to sex.  We all know that’s not true but the training persists.

Demonstrably intoxicated defendant (.27% & .33%) could consent to a search. The parties litigated the level of intoxication with expert witnesses. United States v. Tellefsen, 2011 U.S. Dist. LEXIS 108495 (E.D. Wis. June 2, 2011).

Note the .bac levels.  And here is a piece that Mr. Hall quotes.

Former Sergeant Major of the Army McKinney? 

wtop.com reports: 

Former Sgt. Maj. of the Army Gene McKinney will enter a plea, rather than stand trial for allegedly striking a slug passenger who demanded to be let out of McKinney’s car in Oct. 2010, WTOP has learned.

Army Times reports:  A court-martialed U.S. soldier has been found not guilty by reason of lack of mental responsibility in the killing of a civilian contractor in Iraq.

The Capital reports: A Naval Academy midshipman was found guilty of raping and sexually assaulting a classmate and lying to investigators during a court-martial at the Washington Navy Yard Wednesday.  Apparently the members deliberated for 11 hours.  In a further report the sentence is a “dismissal,” and six months confinement.

The Republic reports: A court-martial was expected to wrap up Friday for a U.S. soldier accused of killing a civilian contractor in Iraq, and a military judge will then decide whether Pfc. Carl T. Stovall was mentally competent when prosecutors say he shot the Hungarian laborer to death.  Here are some of the points from Friday’s hearings reported by the kdhnews.com.

Monday kicks off opening arguments for the new SCOTUS term.  Here is a listing of pending cases, culled from SCOTUSBlog, of criminal law cases that may have some relevance to military justice practitioners (non of them are military cases).

Argument date | case number | case name | summary of QP.

The next two cases are of particular relevance to defense counsel.

SCOTUSBlog notes several (non criminal law) cases still to be scheduled for argument. And cases for the January, February, March, and April court sittings are yet to be set.

Professor Friedman has posted a link (via Westlaw) to a “nice opinion” on a case similar to Williams v. Illinois.  Here is a more available link to Derr v. State (Maryland).  Basically this is a surrogate expert witness at trial case.  The Maryland court said:

Derr challenges the admission of forensic evidence introduced at trial through the testimony of an expert witness who did not take part in or observe the physical testing of the evidence, or independently determine the test results.

In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause (emphasis added).