Articles Posted in Up Periscope

Of interest:

Holding the Line: Understanding the Role of Independent Legal Counsel in Command Decision-Making

Sharpening the Quill and Sword: Maximizing Experience in Military Justice

From Prof. Berman at Sentencing Law & Policy.

Should prosecutors be offered bonuses for conducting trials and getting convictions?

SJA to DC:  My TC’s don’t have enough court time and experience, so that’s why my recommended deal is so high, if you don’t like it try the case so my TC can get experience?

The Nation is running some exclusive book excerpts:

“Bradley Manning:  Truth and Consequences.”

Part I,  Part II.

I posted a while back about this.

Federal Government Compares Seminoles to Al Qaeda in Military Commissions Case.

Now it appears from this in the Miami Herald that more questions have been raised.

Here’s some more from the Havelock News on the former MCAS Cherry Point CO:

Fast on the heels of a former Cherry Point air station commander’s guilty plea to drinking and driving charges on Monday, the government began hearing evidence Tuesday on whether he should face court martial. . . . . The attorneys had not been advised by Marine Corps trial counsel Lt. Col. Valerie Danyluk of the new charges, including wrongful use of government resources, making false statements, a continued improper relationship with a civilian employee after being warned, and wrongfully attempting to impede justice.

The Examiner reports:

The Hastings Law Journal has this Essay:

Finding the Error in Daubert, by Mark Haug and Emily Baird

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. laid down the standard for admissibility of expert testimony. We believe the best standard is simpler than the one chosen by the Court: The Daubert standard really is about discerning the trustworthiness of expert, and trustworthiness is best determined through an expert’s accounting of the error within his testimony. Lower courts have struggled with the Daubert standard. We offer evidence of the problem and propose a new standard that would capture the essence of Daubert but significantly simplify its application.

Thanks to CAAFLog here’s a link to a short article in the Florida Courier about Phillip Mills the errant DNA examiner at USACIL and some impacts of his shoddy, lazy, and possibly manipulative work.  Some highlights.

In a 2001 Navy case, for instance, Mills didn’t examine a knife presented as evidence. Another lab technician was more thorough several years later, and found the DNA of someone who wasn’t the suspect.

An offender still on the loose and a person possibly falsely accused.

Courtesy of CrimProfBlog:

Jesse J. Norris (Beloit College) has posted Who Can Testify About Lab Results after Melendez-Diaz? The Challenge of Surrogate Testimony to the Confrontation Clause (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that a certificate presenting forensic lab results was testimonial evidence, and that defendants thus have the Sixth Amendment right to cross-examine the analyst. Despite this ruling, courts remain divided on the question of surrogate testimony: when can an expert witness, such as a lab supervisor or outside expert, testify in place of the analyst? How this question is answered has enormous consequences for the future of the Confrontation Clause and the criminal justice system more generally. Widespread surrogate testimony threatens to undermine confrontation rights and contribute to false convictions, yet banning it altogether could result in defendants going free whenever the forensic analyst is unavailable and the test cannot be repeated.

Military.com reports:

The top military commander in Afghanistan has suspended a commander and a helicopter crew during an investigation into possible civilian casualties in the eastern Afghan province of Kunar.

DOD Sexual Assaults report for FY 2010.  Fascinating information.

21 March 2011 will see oral argument in Tolentino v. New York (linked to SCOTUSBlog).

Issue: Whether pre-existing identity-related governmental documents, such as motor vehicle records, obtained as the direct result of police action violative of the Fourth Amendment, are subject to the exclusionary rule?

SCOTUSBlog has an argument preview here.