Articles Posted in Up Periscope

In United States v. Arriaga, CAAF holds that housebreaking is an LIO of burglary (an alternate argument was that even if the HB was an LIO, they MJ erred in instructing on the offense because it wasn’t raised by the evidence), and that appellant was denied a “speedy” post-trial review.

The post-trial delay arguments raised in this case compel a brief review of this court’s recent appellate delay decisions before we turn to an analysis of the delay in Arriaga’s case.

Arriaga’s court-martial was completed on August 28, 2008.  It took the court reporter eighty-two days to complete the record of trial. It then took trial counsel eighty days to authenticate the record of trial (162 days after trial). It took the military judge twenty-five days to authenticate the record of trial (187 days after trial). The convening authority took his action twenty-six days later, 243 days after trial.

In United States v. Gubitosi, the Appellant was convicted of one specification of unauthorized absence, in violation of Article 86, Uniform Code of Military Justice (UCMJ); one specification of drunken operation of a vehicle, in violation of Article 111, UCMJ; and one specification of underage drinking, one specification of using a false military identification card, and one specification of fleeing the scene of an accident, all in violation of Article 134, UCMJ.

The sole issue on appeal is:

Appellant’s plea to fleeing the scene of an accident was improvident as the military judge failed to elicit a sufficient factual basis regarding whether Appellant knew his act was wrongful in support of his plea.

Navy Times reports:  The former executive officer of a Mayport, Fla.-based destroyer pleaded not guilty to multiple counts of assault, wrongful sexual contact and other charges during an arraignment Wednesday at Naval Station Mayport, according to Naval Surface Force Atlantic.

Prior links here and here.

Military.com reports:

The commander of a guided-missile destroyer has been relieved of command while the Navy investigates allegations of misconduct.

The San Diego-based Third Fleet says Cmdr. Jay Wylie of the USS Momsen was relieved Wednesday due to “loss of confidence in his ability to command.” He was reassigned to a San Diego post.

Here’s an interesting report from the National Institute of Justice.  The writers find that SOR has little effect on the rate or recidivism of sex offenders in New Jersey.  They reference, The New Jersey study report Megan’s Law: Assessing the Practical and Monetary Efficacy is available at: http://www.ncjrs.gov/pdffiles1/nij/grants/225370.pdf.

Sex offense rates in New Jersey have been on a consistent downward trend since 1985. During this period, rearrests for violent crime (whether sex crimes or not) also decreased. When the researchers examined the decline in each county and then examined the state as a whole, the resulting statistical analysis showed that the greatest rate of decline for sex offending occurred prior to 1994 and the least rate of decline occurred after 1995. Hence the data show that the greatest rate of decline in sex offending occurred prior to the passage and implementation of Megan’s Law.

Megan’s Law did not reduce the number of rearrests for sex offenses, nor did it have any demonstrable effect on the time between when sex offenders were released from prison and the time they were rearrested for any new offense, such as a drug, theft or sex offense.

Navy Times reports:  Two sailors assigned to the naval hospital at Camp Lejeune, N.C., are being described as “persons of interest” in a child molestation and child pornography investigation that has netted a local woman on charges that include the molestation of her 5-year-old niece.

Yes, I got my copy of the NIJ Journal, so here’s another interesting article available on the web.  Solving the Problem of Untested Evidence in Sexual Assaults, by Nancy Ritter.

The National Institute of Justice has now put The Fingerprint Sourcebook, by the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST), et al., March 2011, Chapters 1, 4 – 8,  10 – 13, and 14 – 15 on line.  It appears that the remaining chapters will be published “in stages.”

I was particularly interested in Chapter 15: Special Abilities and Vulnerabilities in Forensic Expertise (pdf, 24 pages), By Tom Busey and Itiel Dror, which concludes:

In a post-Daubert environment, there is a need for additional research in the field of friction ridge science. Certainly any science wishes to expand the depth and breadth of knowledge of the discipline. We in the fingerprint expert community must attempt to challenge and study further the laws and theories that comprise our discipline.  Specifically, we must focus our efforts to reevaluate the basic tenets of individualizing friction ridges using modern and enhanced technologies, which were not available in Galton’s day. There are many unanswered or partially answered questions regarding the individuality of friction ridge skin and the forensic comparison of friction ridge impressions.  Although significant advances have been made, many of them in just the last two decades, this is really only the tip of the iceberg. With the advent of newer, more powerful technologies, software, and computer algorithms, we have opportunities to explore our vast fingerprint databases and quickly growing palmprint databases.  We need to assess and quantify the full extent of variation of friction ridge features, starting with perhaps the most basic (patterns and minutiae—if one can truly call this “basic”) and then attempt to assess and quantify other features such as creases, scars, edge shapes, and so forth.  

Military.com reports:

Secretary of the Navy Ray Mabus said April 27 that the spate of firings of senior officers involves only a small portion of the commanding officer corps and doesn’t hint at a wider problem across the fleet. . . . [this fosters accountability] . . . “Since 2005, we have dismissed less than 1 percent of our commanding officers[.]

Here’s another one reported by Navy Times.

The National Law Journal has this piece:  Head in the sand over prosecutorial misconduct.

The Supreme Court has sent a disturbing message that it just doesn’t realize there is a serious problem infecting our criminal justice system.