Articles Posted in Up Periscope

The Judge Advocate will be published on a quarterly basis in February, May, August, and November. The deadline for submissions for the November issue is October 15, 2011. Please consider writing a short or long piece on a topic of interest to the military legal community. Submissions may be sent to us at: execdir@jaa.org.

Although JAA publications are traditionally available only to Association members, we are making the August and November 2011 editions publicly available.

Of interest in this issue is a BCMR practice update by Alan Goldsmith.  Alan is one of the “insiders” on BCNR, with a profound knowledge and understanding of the process and the realities of BCMR practice. 

‘West Memphis Three’ case shows we see what we expect to see

Jennifer L. Mnookin, Special to the Los Angeles Times

Navy Times reports a very odd situation of a Coast Guard cutter XO being fired.

Army Times reports that Rentfrom was sentenced to [corrected, thanks to ML] Life but with eligibility for parole.  He will have to serve at least 10 years however, absent clemency action.  See 6.16.6.3.3, DODI 1325.7.

CAAF has added a useful tool for research on current issues.

Here is a link to the 11 October oral argument in Schumacher.  This is the first oral argument for the season.

You will note that there is a link to the briefs.  Note, these are the final briefs at CAAF, not the Supplements or the briefs from the court below.

Again courtesy of FourthAmendment.com

False representations by defendant’s wife, who was secretly working with the police, that if he did not consent, she was going to jail, which was false, vitiated defendant’s consent. United States v. Strange, 2011 U.S. Dist. LEXIS 94094 (W.D. Mo. August 23, 2011)[.]

Query, what about law enforcement’s favorite trick of pretext phone calls?  Depending on what was said, could there be some sort of issue?

Courtesy of fourthamendment.com here is an interesting case – the operative language being, I suspect, “finding none.”  But the case may also having something to say about blanket search authorizations for which LE merely changes the name, in this case based on “tips” from NCMEC.

Franks violation leading to search warrant for child pornography, finding none, leads to civil rights liability for the investigators. Chism v. Washington State, 10-35085 (9th Cir. August 25, 2011).

We reverse the district court’s judgment and remand this case for trial. Viewing the evidence in the light most favorable to the Chisms, we conclude that the Chisms have made a substantial showing of the officers’ deliberate falsehood or reckless disregard for the truth and have established that, but for the dishonesty, the searches and arrest would not have occurred. We also conclude that the officers are not entitled to qualified immunity because the Chisms’ right to not be searched and arrested as a result of judicial deception was clearly established at the time Gardner prepared and submitted her affidavit.

Ventura County Star has this posting.

Aaron Sorkin’s “A Few Good Men” makes a few good points about military honor and justice. Sorkin, who also was the chief writer for TV’s lively “West Wing,” brought forth “Men” in 1989, when its issues were underscored by the possibility of global war. But the basic question of fidelity to military command resurfaces with unsettling regularity, from Nuremberg to Abu Ghraib. The problem often involves whether criminal deeds were done by soldiers freelancing, or rather as a response to suggestions or direct commands from higher authorities. Clearly it can be a complex puzzle separating the two and deciding where responsibility lies.

Nothing like being out for a few days, and a lot happens.

Navy Times reports:  CAPT Honors’ BOI recommended retention.

The board did not elaborate on why it found Honors had committed those offenses but should remain in the Navy. The government had been asking that Honors be honorably discharged.  . . . Although Honor’s career won’t come to an abrupt halt for disciplinary reasons, it is still possible he won’t remain in the service much longer. Honors is among those the Navy is considering for early retirement as it thins out its ranks to cut costs.

Well, that’s certainly the thrust of quite a bit of academic and other writings about how the “Roberts’ Court” approaches the Fourth, Fifth, and Sixth Amendments.

Here is a piece within that group.

Jonathan Witmer-Rich, Interrogation and the Roberts Court, 63 Fla. L. Rev. 1189 (2011)| PDF

Fairbanks Daily Newsminer.com reports:  A general court-martial for a Fort Wainwright soldier accused of killing his wife begins this week.

Spc. Aaron M. Rentfrow, 30, of Fort Wanye, Ind., faces charges of murder and kidnapping. The court-marital convened Monday morning and is expected to begin selecting a five-member panel of jurors this morning. If convicted, he could face the death penalty.

Military justice practitioners will immediately see the significant error in this report – capital referral, “five member” panel?  If the case is referred non-capital, then the death penalty is not authorized, so the reference to five (at least five) is correct.