Articles Posted in Up Periscope

Wired.com reports: 

Almost one year to the day after Army investigators arrested intelligence analyst Bradley Manning on suspicion of leaking hundreds of thousands of classified documents to WikiLeaks, the ex-hacker who turned him in is set to meet with the chief prosecutor on the case for the first time.

“I’m finally going to meet with the JAG officer to go over the preliminaries for the actual testimony and how they want to play out my role,” Lamo said in a telephone interview Tuesday. “It’s the first time I’ve met with them.”

And what a choice.

Schriever AFB paper has a report about “bath salts” being the latest drug craze – “scourge.”

CPT K. and I had this come up this week in a drug case.  We were putting the prosecution’s primary witness (the accomplice and co-conspirator) on trial for his drug use.  He admitted to using “bath salts” (as well as other drugs while pending court-martial.  The prosecution called an expert to establish that the accused and others were using hashish while in A/stan.

What is the maximum potential sentence for the use of hashish in a combat zone – two years or five?

Kudos to CPT K in a recent case he and I did together in getting the MJ to rule that it was two years.

1.  The MJ agreed the MCM was ambiguous as to hashish being no different to marijuana or in the more serious category.  The rule of lenity applies in favor of an accused when a criminal statute is ambiguous, and that should be the same for the MCM.

United States v. Hudson is a new unpublished opinion from AFCCA.

The DC challenged a member for implied bias.

At trial, after Lt Col DB and the other members were selected as court members but before opening statements, the military judge advised the members that to avoid the appearance of inappropriate conduct, she and the lawyers involved in the case were not allowed to speak to them outside the court-martial. The next morning prior to trial, the staff judge advocate advised the military judge that earlier that morning Lt Col DB had sought his advice on whether and how to revise a previous answer he had given the court during voir dire.7 The staff judge advocate testified that he terminated the conversation
and contacted the military judge.

Here is SCOTUSBlogs summary of Fowler v. United States.  Might be something in here for a case or two.

Professor Friedman at confrontationright blog has an illustration of why it may be important to have the “real” analyst at trial:

The defendant was charged with possession with intent to distribute a quantity of methamphetamine of 4 grams or more but less than 200 grams. In Texas, this is a first-degree felony with a punishment range of 5 to 99 years or life and a fine up to $10,000.00.  The official lab report, signed by the analyst who performed the actual test, reflected the presence in the tested substance of methamphetamine with an aggregate weight of 4.51 grams. The analyst testified at trial. Using his personal notes to refresh his memory, he testified that the aggregate weight of the methamphetamine was 1.51 grams. The prosecutor then asked the analyst to review the lab report. After a pause the analyst testified that report was in error and that his notes reflected the correct amount. (Apparently, a clerk prepared the report from the notes of the analyst and made the error.)

This was a happy result for the accused, but not so for a co-accused who’d plead guilty on the basis of the same report.

A number of opinions have come from NMCCA and AFCCA.

Here’s an NMCCA opinion of interest in United States v. Mokgoatsane.

The military judge returned from deliberations, awarding the sentence supra, followed by a “formal recommendation” on the record to the CA that an examination pursuant to R.C.M. 706 be conducted while the appellant served the adjudged confinement.  Id. at 73. Despite the military judge’s inquiry into the providence of the appellant’s pleas, this recommendation betrays that the military judge harbored real doubt as to whether the appellant “lacked mental responsibility for any offense charged or lack[ed] capacity to stand trial.” R.C.M. 706. Per the rule, it was the military judge’s responsibility, at this point in the proceedings, to address the matter, not the CA’s.

Navy Times reports: Two midshipmen were expelled from the Naval Academy on Tuesday for use or possession of synthetic marijuana, the academy confirmed Thursday. That brings the total number of mids expelled this year for spice to 15.

There is an ongoing dispute about how the Navy calculates “good time” credit.  Here’s how NMCCA disposes of the issue:

The appellant maintains that his good time credit should be calculated at a rate of 8 days per month vice 5 days per month.  This court’s statutory jurisdiction is to review the findings and sentence in certain courts-martial, but like the Court of Appeals for the Armed Forces, we do not have the authority “to oversee all matters arguably related to military justice or to act as a plenary administrator even of criminal judgments it has affirmed.” Clinton v. Goldsmith 526 U.S. 529, 536 (1999); see Art. 66, UCMJ, 10 U.S.C. § 866. Calculation of the appellant’s sentence under proper service regulations is an administrative matter that generally does not constitute punishment and enter our jurisdictional domain. See United States v. Pena, 64 M.J. 259, 268 (C.A.A.F. 2007). Accordingly, we will not further address this issue.

The Schriever (AFB) Sentinel reports:

On the heels of the Drug Enforcement Administration’s temporary nationwide ban on the drug known as Spice, another synthetic substance designed to produce a legal high has hit convenience stores, truck stops and Internet websites.  Packaged as "bath salts" or "plant food," these products contain stimulants which medical experts have compared to methamphetamine or cocaine. During the past eight months, police departments and hospital emergency rooms across the nation have reported isolated incidents of user overdoses and drug-induced suicides linked to these substances.

Yesterday, CAAF held its annual end-of-term soiree.  Chief Judge Effron and Judge Erdmann were in attendance as were many of the military appellate counsel and members of staff.

I am advised that they have about 24 more opinions to be published (Fosler and the trailer park count as one).  And as is pointed out on CAAFLog there is one more argument to go.  Here is my current, I think accurate [“my Liege” where are you], breakdown of the voting to date.

We have 15 AFCCA, 10 ACCA, 6 NMCCA, 1 CGCCA. (Sorry, neglected to consider who “won,” next iteration).