Articles Posted in Up Periscope

Prof. Colin Miller takes up the current status of Crawford with this intriguing title:  Post-Bryant Case Law Confirms Scalia’s Fears.  His premise quite simply is that we are back to Ohio v. Roberts and measuring “reliability” using different phraseology.

In my view, a test that hinges upon the hidden and empirically unknowable “primary” purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.” While I am not sure of the most appropriate solution at this time, the natural thought would be to replace Bryant’s multi-factor test with a simpler test, one that would not require courts to examine the potentially mixed motives of declarant and interrogator.  I have written an article proposing a bright-line rule to replace Bryant’s factors test.  You can download the full article here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1921606

Does anyone know why the public can’t access ACCA or the TJAGSA websites?  I know when I try to access (using Chrome, Firefox, or IE) you get a site certificate error and can’t get past it.

I have clients, their families, and others asking the same question?

I understand the conclusions of the court in New v. United States, 2011 U.S. App. LEXIS 18157 (8th Cir. August 31, 2011).

Defendant in his § 2255 failed to show that defense counsel was ineffective for not arguing that he had a reasonable expectation of privacy in a hospital room. He cited no controlling case law. The law is unsettled on that at best, and no case from the Eighth Circuit is in point. Defense counsel is [essentially] not charged with being ineffective for not arguing that the law should be changed.

However, I disagree as a practice matter, or as NJAG would say, as a “best practice,” that a defense counsel should not be looking for reasonable arguments for a change in the law.  Especially when there is a “split of authority” (which could include one between the federal circuits and CAAF), or there are ongoing arguments why a particular law is wrong.  We have seen that most frequently in the Crawford-Blazier string of litigation and litigation about Article 120.

SignOnSanDiego reports an interesting civilian case, but sufficiently relevant for this weekend.  (The judge has dismissed NCIS and AFIP as defendents.)

The sample of U.S. Marine Sgt. Todd Sommer’s liver and kidney was full of arsenic, more arsenic than had ever been found in a human tissue sample before — by 1,250 percent, according to a court complaint.  It was a level . . . [that]  should have raised flags about whether the sample was contaminated.

His wife was unsuccessfully prosecuted.  And now she has a civil rights law suit against the DA for $20M.

KSALLink reports:  A Fort Riley soldier is killed during a standoff at a motel in Abilene. . . . The Army says that Evenson was reported Absent Without Leave by military authorities Tuesday when he failed to appear for the second day of his court-martial for rape of a child. He was tried in absentia and on Wednesday he was convicted and sentenced to life without the possibility of parole.

Salina Journal is reporting a “seven hour” standoff.

The charges will get set-aside because he has died during the course of his trial and appeal.  The effect of that will be the family will get death benefits, etc.  “An appellant is entitled to an appeal of right and his death prior to completion of that appeal generally entitles him to abatement of the proceedings ab initio.” United States v. Rorie, 58 M.J. 399, 400 (C.A.A.F. 2003).

Slightly off topic.  The Richmond Times Despatch reports on the pending appellate action of the “Norfolk Four.”  Seems to me this might be a coram nobis case had it been a court-martial.

From FOB Tacoma, The News Tribune reports:  The Army is moving forward with most of the charges it pressed against a Joint Base Lewis-McChord sergeant linked to its Stryker “kill team” investigation despite a July report that expressed skepticism about the soldier’s guilt.

 Stars & Stripes reports:  The Air Force is holding an investigative hearing this week at Kadena Air Base to determine whether a staff sergeant will stand trial for the January death of a fellow airman, according to the 18th Wing public affairs office.

Professor Freidman the Great Confrontationist has posted the Petitioner’s Brief and Appendix for Williams v. Illinois.  This case is one of several we should be following that will come from the Supremes.  This issue presented in Williams is:

Whether the prosecution violates the Confrontation Clause when it presents, pursuant to a state rule of evidence, the substance  of a testimonial forensic laboratory report through the trial testimony of an expert witness who took no part in the reported forensic analysis, where the defendant had no opportunity to confront the  analysts who authored the report.

Scroll down on his page and you’ll find initial thoughts on Williams.  SCOTUSBlog has the case “file.”

Wuterich v. United States.

Police came to do a knock-and-talk, and defendant objected to a search of the bedroom he shared with his wife. When he objected, the police took the wife and her mother outside to talk about consent. The district court’s effort to find a hierarchy of privacy interests in the home has no foundation inRandolph, and this consent over objection violated Randolph. United States v. Johnson, 2011 U.S. App. LEXIS 18006 (6th Cir. August 29, 2011).

The blogger references an attorney at The Federal Criminal Appeals blog of Kaiser Law Firm.  Included in that article might be the perfect holiday season gift.

h/t fourthamendment.com

I posted about eyewitness testimony the other day.

Here is an article to read.

Sandra Guerra Thompson (University of Houston Law Center) has postedJudicial Gatekeeping of Police-Generated Witness Testimony on SSRN. Here is the abstract: