Articles Posted in Up Periscope

Yes, this season appears to be the one to address a number of lingering or ambiguous (or not so ambiguous) issues about Mil. R. Evid. 412.  So, it seems apt that the last opinion for this season is out:  United States v. Ellenbrock.

We granted review to determine whether the military judge erred in applying Military Rule of Evidence (M.R.E.) 412 to prevent Appellant from introducing evidence of the alleged victim’s first marital affair to show a motive to fabricate the accusation against Appellant.  We hold that the evidence was constitutionally required, that the military judge abused her discretion by refusing to admit the evidence, and that it was not harmless beyond a reasonable doubt. 

Appellant moved under M.R.E. 412 to introduce testimony that CL had engaged in a prior extramarital affair to support his theory that CL had a motive to lie about the consensual nature of the sex with him, which was to protect her marriage.

United States v. Sweeney.  This is a Crawford-Blazier case.

In the Blazier cases, we set forth a straightforward path for analyzing the admissibility of drug testing reports under the Confrontation Clause.

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The CAAF recently decided United States v. Baker, an Article 62 appeal of an MJ’s ruling suppressing an identification.

There is quite a bit of legitimate research indicating that even 12 bishops might give an erroneous identification of a suspect either in witness interviews or through an out of court identification (photo or lineup).  For a current example: 

The Supreme Court has previously ruled that the due process clause requires judges to exclude at least some eyewitness testimony based on unreliability, the New York Times reports. The new case, Perry v. New Hampshire, seeks more specifics about the kinds of identifications warranting a closer look. Do due process protections apply to all eyewitness IDs made under suggestive circumstances? Or just those IDs made when the suggestive circumstances were orchestrated by police?

DOD Live has a piece from the Surgeon General of the Navy about “spice.”

The Navy’s zero tolerance policy for drug abuse includes possession of substances or designated products that contain synthetic cannabinoid compounds, including Spice, fake marijuana or fake pot, herbal incense or potpourri, salvia divinorum, bath salts, Skunk, Genie, Blaze, Dream, Spike 99, Ex-Ses, Spark, Fusion, Dark Knight, Yucatan Fire, K2, and many others.

CAAF decided United States v. Girouard.  The court affirmed and reversed some findings and authorized either a Sales or a rehearing on sentence.  Based on the Army Times article, it appears the Army is awaiting a resentencing hearing.

Air Force Times reports:  More than half of the airmen tested for spice have had positive results, according to the Armed Forces Medical Examiner System.  Military tests for the synthetic form of cannabis began in March, the same month the Drug Enforcement Administration issued a one-year ban on five chemicals used to make spice.

On 8 November 2011, the U. S. Supreme Court will hear oral argument in a case with application to military prosecutions.  Here is the SCOTUSBlog information for Smith v. Cain, No. 10-8145.

Issue: 1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.

Plain English Issue: Whether the state courts in this case erred in concluding that any violation of the defendant’s constitutional rights at his criminal trial was harmless.

Stars & Stripes reports on United States v. Gray and other death penalty cases.

In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.  .  .  .  But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal. . . .

[F]ederal defenders who took over his case say they’ve found new evidence that his original military lawyers should have discovered.

Sig Christenson at Military Reporters & Editors directs us to his piece at San Antonio Express News (of CAAF fame) about United States v. Hasan.

I recall the time in another high-profile case where the post, on the East Coast, demanded that journalists sign a ground rules agreement prior to entering the courtroom. . . . This sort of silliness has gone on elsewhere. At Fort Hood, they’ve told reporters not to ask certain types of questions if they should meet with prosecutors. The punishment for doing so? Expulsion from the court (emphasis added).  (Comment note:  wouldn’t the proper procedure be to allow questions or for the SJA to direct his TC’s not to make public comments on the case, and then if they didn’t want to, not answer the question – without of course any sort of ban on the person asking the question?)

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Several cases have been decided by CAAF.

United States v. Baker.  Erdmann wrote for himself and Effron and Stucky, with Baker writing in dissent for himself and Ryan.

This was action on a government appeal under Article 62, UCMJ.  The ACCA reversed an identification suppression made by the military judge.

United States v. Gaddis was decided by CAAF.

Here are two pithy comments on the decision, one by DMLHS, and one by Professor Colin Miller.

Basically the opinion deals with the question of a complaining witness’s privacy.  Many TC and some judges apply the balancing test focused on prejudice to the complaining witness’s privacy.  As the CAAF held in Gaddis, that is the wrong analysis.