Articles Posted in Up Periscope

So, I’m objecting to a piece of evidence that the prosecution wants given to the members.  The objection is that the evidence contains inadmissible material.  The TC says, well that’s OK, give it to them with a limiting instruction.  So I say, wait a minute.  This is different to the situation where something is testified to and now we have to deal with it – unringing the bell and all that.  This is a situation where the TC wants to knowingly ring the bell, but “cure it” with a limiting instruction.  The MJ thought and had the exhibit redacted – phew.  So remember that phrase “you can’t unring the bell.”

So, a little while later the TC wants to admit another exhibit, same issue and concerns.  Only this is a skunk in the jury box.

So, here’s one of my favorite quotes:

In United States v. Serna, an unpublished opinion, NMCCA holds that indecent acts with a child over 12 is effectively an “LIO” of indecent acts with a child under 12 for sentencing purposes.  The age of the victim being a potential aggravating factor.  This was a GP case where the MJ failed to resolve inconsistencies presented partly during the providence inquiry and partly through several defense exhibits.

For us Chrome users the RSS feeds on the CAAF website can be accessed two ways.

Use Google Reader, and then use Google Reader Notifier in the browser to alert you.

CAAF has also posted this link for a RSS extension that’s good for all websites showing the RSS icon not just CAAF.

Professor Friedman has a quick note on a petition filed at the Supremes in Racz v. California.

The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.  (Emphasis added.)

People v. Racz, No. BA320288, August 30, 2010 (Ca.. App. 2010)(unpub.).  It appears a petition for review at the California Supreme Court was denied on 15 December 2010.

The fayobserver.com reports:  The top enlisted Special Forces soldier has been removed from his position while commanders investigate allegations that he had an extramarital relationship.  In addition to the adultery, the military investigation:

The military investigation, Pruitt asserts in the court documents, is focused on determining whether Vigil broke a military law that prohibits unbecoming conduct and whether he shared classified information with her.

In doing some browsing I came across a copy of the Article 32, UCMJ, IO report in United States v. Wuterich at this link.  There’s also a link to various reports on the Haditha “cases.”

You are aware of Fasler and the numerous trailer cases.  Here is a grant from today’s CAAF orders:

No. 11-0374/AR.  U.S. v. Lelan M. SHANKLES.  CCA 20100307.  Review granted on the following specified issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER AND JONES.

Professor Colin Miller has a very interesting post regarding a new article by Cynthia Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010).

Most importantly are two potential recommendations for dealing with the issue at trial.  First Professor Jones takes up the two common actions:   dismissal or continuance.  She explains why, as we know, dismissal is an unlikely drastic remedy, and why a continuance may be meaningless.  She doesn’t directly address one of the remedies I’ve asked for: prohibit the witness testimony.

She raises two very interesting remedies:  a “Brady Instruction,” partly based on Fed. R. Civ. Pro. 37(c), and an instruction on “Consciousness of a Weak Case Inference.”

United States v. Oliver.  This was a legal sufficiency of a desertion conviction.  Fascinating discussion of the role of CAAF and the legal standard of review at CAAF under Jackson.

Here is a link to the February AL.

urviving the Multiplicity/LIO Family Vortex

Not unexpected but it looks like the former CO, MCAS Cheery Point may be headed to court-martial.  See jdnews.com and Eyewitness News 9.  The EW9 reports that he pleaded guilty in civilian court yesterday.

Apparently there are additional issues, such as flying too soon after drinking.