Articles Posted in Up Periscope

Professor Bergman notes a case from the Seventh.

Interesting ruling today by a split Seventh Circuit panel today in Chaidez v. US, No. 10-3623 (7th Cir. Aug. 23, 2011) (available here), starts this way:

In Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), the Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation.  The district court concluded that Padilla did not announce a new rule under the framework set forth in Teague v. Lane, 489 U.S. 288 (1989), and consequently applied its holding to Petitioner Roselva Chaidez’s collateral appeal.  Because we conclude that Padilla announced a new rule that does not fall within either of Teague’s exceptions, we reverse the judgment of the district court.

SimpleJustice blog has an interesting piece on the DSK rape case, and a link to the prosecution motion to dismiss.

I wonder if Article 32, IO’s, and Government Representatives (TC) could be so conscientious in investigating a military rape allegation and then presenting it to the CA?

As SJ notes, “The big question is whether this prosecutorial fiasco teaches any lessons from which we can draw conclusions about our legal system.  Each of us will take from this case whatever supports our religion[.]  There’s enough in this case to satisfy every perspective, and enough to allow us to argue that no other perspective could possibly be correct. ”

United States v. Christian, 63 M.J. 205, 206 (C.A.A.F. 2006).

This Court has granted review of two issues.  The first issue for our consideration is whether life without eligibility for parole (LWOP) was an authorized punishment at the time Appellant committed the offense of forcible sodomy of a child under twelve years of age.  We hold that LWOP was an authorized sentence and conclude that Appellant’s guilty plea was provident. 

  Ooops, no, I meant Christian v. Commandant.

Navy Times reports: 

The number of people to be cut by this year’s two enlisted retention boards has dropped by more than 200, based on an Aug. 1 quotas update released by personnel officials.

Perhaps they are making the numbers with misconduct separations.

I have previously posted about “context testimony” usually from law enforcement officers to set the stage for why an investigation began.  While not exactly addressing this issue, NMCCA has come close and has a useful discussion of how similar context evidence is not admissible.

In United States v. Combest (an unpublished op.) the court sets the facts.

Soon after arriving home [from apparently being assaulted], DW told her sister, AH, that she had been sexually assaulted by the appellant.  AH then called the police.  It is DW’s statement to AH that gives rise to the appellant’s assignment of error.

The prosecution, often routinely, denies or fails to answer requests for derogatory information in the personnel records of law enforcement personnel involved in a case.  Some cite United States v. Henthorn (note the NMCCA, in at least one court order, has noted that no military appellate court has ruled that Henthorn states the applicable rule).

Here, courtesy of fourthamendment.com is an interesting federal court case.

The right to compulsory production of the searching officer’s personnel file that was specific only for potential impeachment material would be enforced under United States v. Nixon, Rule 17(c) [Fed. R. Crim. Pro.], and Colorado’s privacy standards (People v. Spykstra, 234 P.3d 662, 670 (Colo. 2010)). United States v. Neal, Civil Action No. 11-cr-00163-WJM, 2011 U.S. Dist. LEXIS 92151 (D. Colo. August 18, 2011):

So, you have a prosecution witness who testifies to something on the witness stand which you know is wrong and for which you have contradictory evidence.  Let’s also assume for the moment that the wrong testimony is about something relevant to the case and you are not in a situation where you can impeach through prior inconsistent statements.  Federalevidence blog has a case discussing impeachment through contradiction.

Drawing the line between evidence that probes the character and conduct of a witness through use of "specific incidents" of misconduct under FRE 608(b) and evidence aimed at directly contradicting the witness’s contentions, can be difficult to draw. A recent case of the Third Circuit explored this difference between evidence excludable under FRE 608(b) and evidence admitted as evidence of "impeachment by contradiction." Admission of the impeachment by contradiction evidence is subject to limits, not from FRE 608(b) constraints, but rather by FRE 403’s balance of the probative value against the possible prejudicial impacts of the evidence.

Impeachment by contradiction allows “courts to admit extrinsic evidence that specific testimony is false, because contradicted by other evidence,” citing to United States v. Castillo, 181 F.3d 1129, 1132–33 (9th Cir. 1999).  Impeachment by contradiction is “a means of policing the defendant’s obligation to speak the truth in response to proper questions,” citing to United States v. Gilmore, 553 F.3d 266, 271 (3d Cir.2009).

Navy Times reports:  The former executive officer of the Mayport, Fla.-based cruiser Gettysburg received non-judicial punishment for sexual misconduct and a likely forced retirement at an admiral’s mast hearing in Norfolk Monday morning, the Navy announced.

Marine Corps Times reports on Mids spicing up life.   On June 13, four Naval Academy midshipmen snuck aboard the decommissioned carrier. The mids ascended through the empty carrier, decommissioned 17 years ago, until they reached the pilothouse. Saratoga is moored in Coddington Cove, on a pier at Naval Station Newport, R.I., which the mids were visiting for their summer cruise.  And that’s when they decided to take things, according to academy spokesman Lt. Cmdr. William Marks. Gauges. A gyrocompass. Display dials.

Navy Times reports:  When the Navy discovered an exam-cheating ring aboard one of its submarines, it swiftly fired the commanding officer and kicked off 10 percent of the crew

Nope, not yet, but maybe.  Under Mil. R. Evid. 1102, a federal rule of evidence becomes effective in courts-martial 18 months after the federal rule goes into effect, unless the President decides otherwise.  So,

Federalevidence.com blog reports the status of a change to Fed. R. Evid. 803(10), which is intended to address some “confrontation” problems.  I doubt very much the President will object to this rule because it helps the government.  However, there is an interesting part that may be objectionable to the JSC.

(B) if the prosecutor in a criminal case intends to offer a certification, the prosecutor provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

Thanks to obamaconsipiracy.org here are some links and information about a new military-birther case?

Air Force Staff Sergeant Refusing Orders Until Obama’s Eligibility Dealt With

Did LTC Lakin and his case have an effect on other members of the military?  Maybe so.