Articles Posted in Up Periscope

The Marine Corps says it has issued a suicide-proof sleeping garment to the imprisoned Army private suspected of giving classified material to WikiLeaks.

Professor Friedman reminds us that we have other confrontation issues beyond the non-testifying witness concern.

Focus on Crawford-related issues should not obscure the fact that many significant Confrontation Clause questions concern the scope of the accused’s right to cross-examine a witness who actually testifies at trial. Adam Liptak of the New York Times has alerted me to an interesting decision issued yesterday by the Second Circuit in United States v. Treacy.

The Second Circuit held that the limitations on cross- examination were improper. It declared that

federalevidence.com reports on:

In trial for mail fraud and theft from a program receiving federal funds, trial court error in permitting the prosecutor to cross-examine the defendant state legislator as to her opinion of whether other witnesses were lying and lacked veracity, however error did not rise to plain error; joining consensus of six other circuits on the impropriety of requiring a defendant to testify as to the veracity of other witnesses, in United States v. Schmitz, __ F.3d __ (11th Cir. March 4, 2011) (No. 09-14452)

The Eleventh Circuit joined the First, Second, Third, Fifth, Seventh, and Ninth Circuits in finding that a prosecutor’s questions on cross-examinaton of the defendant as to whether other witnesses — specifically those telling a different story than the defendant — are lying. The reasons for this limit on cross-examination are diverse, but carefully explained in a recent case by the Eleventh Circuit.

United States v. Medina.

While this case, like Prather, involves the “substantially incapacitated” element of aggravated sexual assault under Article 120(c)(2), UCMJ, under the unique circumstances of this case the instructions provided by the military judge did not employ the statutory provision regarding the defense’s burden of proof on the affirmative defense of consent.  We therefore affirm the lower court’s decision.

Initial reaction is that unless and until there is some statutory fix, military judges should erroneously instruct the members.  This is what Judge Baker’s concurring opinion “decides.”  While the instructions would arguably be erroneous, the error would benefit the accused and potentially remove the constitutional infirmity.

Stars & Stripes reports:

The Marine Corps on Okinawa has created a crime-tips website to combat the use of designer drugs known as Spice, officials said Thursday.

ACCA decided United States v. Baker, a government appeal.  ACCA decided that the military judge abused his discretion by suppressing a “show-up” and in-court identification.

Army Times reports:

A former command sergeant major at Walter Reed Army Medical Center in Washington, D.C., fired for faking his record and wearing numerous unauthorized awards and decorations, was sentenced to six months imprisonment and a demotion to staff sergeant.

10News reports:

Honolulu Star Advertiser reports:

A former Navy diver who worked with SEAL commandos at Pearl Harbor has been charged with murdering his 14-month-old son, nearly a year and a half after the boy died from severe brain injury caused by “abusive head trauma,” officials said.

Matthew McVeigh, 26, was charged by the military on Feb. 9 with one charge and two specifications of murder, one charge and two specifications of involuntary manslaughter, and one charge and one specification of assault in the death of Brayden McVeigh, the Navy said.

SignOn San Diego has a piece about todays proceedings.

Until now, the story surrounding the December 2009 death of 8-year-old Anthony DeWeese has largely focused on whether the Coast Guard pilot who crashed a 33-foot patrol vessel into the DeWeese family boatwas hot-dogging that night during the San Diego Bay Parade of Lights.

At a general court-martial Monday at Coast Guard district headquarters in Alameda, lawyers for Boatswain’s Mate 3rd Class Paul Ramos began trying to change that story.

SignOn San Diego reports:

As a young Coast Guard crewman goes on trial today for a child’s death, no officers from the Coast Guard’s San Diego sector have been formally faulted for a patrol boatoperation described as being in disarray before the 2009 crash.

And the 33-foot patrol boat model involved in the collision that killed 8-year-old Anthony DeWeese is still being used in 24 Coast Guard locations around the country, despite mounting evidence that it has a serious blind spot at moderate speeds.

United States v. Clark.  5-0 written by Judge (soon to be CJ) Baker.

We granted review of the following issues:
I. WHETHER IT WAS PLAIN ERROR FOR TRIAL COUNSEL TO ELICIT TESTIMONY THAT APPELLANT DID NOT RESPOND VERBALLY WHEN ARRESTED, AND THEN RELY ON THIS TESTIMONY DURING CLOSING ARGUMENT.
II. WHETHER THE MILITARY JUDGE COMMITTED CONSTITUTIONAL ERROR THAT WAS NOT HARMLESS BEYOND A REASONABLE DOUBT WHEN HE OVERRULED DEFENSE COUNSEL’S OBJECTION DURING TRIAL COUNSEL’S IMPROPER REBUTTAL ARGUMENT.

For the reasons set forth below, we conclude that it was plain or obvious error for trial counsel to elicit testimony of Appellant’s failure to respond verbally to an accusation when apprehended and then rely on this testimony in his closing argument.  We further conclude that the military judge committed constitutional error when he overruled Appellant’s objection during trial counsel’s improper rebuttal argument.  However, we also conclude that these violations were harmless beyond a reasonable doubt[.]