Articles Posted in Up Periscope

Professor Friedman blogs today that:

This morning, the Supreme Court GVRed — granted, vacated, and remanded — the case of Allshouse v. Pennsylvania, No. 09-1396, for reconsideration in light of last week’s decision in Michigan v. Bryant.Allshouse involves statements by a four-year-old to a child protection agency worker investigating allegations of abuse. The petition was brought by Jeff Fisher; an amicus brief in support of it was filed by the National Association of Criminal Defense Lawyers. Interestingly, Pennsylvania acknowledged in its Brief in Opposition that the case was worthy of certiorari — so the very short reply brief in support of the petition argued that cert should be granted immediately rather than after the decision in Bryant. But not surprisingly, the Court held the case pending Bryant, and now it has signaled, wisely I think, that before stepping into the very difficult area of children’s statements it wants to see how Bryant plays out in the lower courts.

and parole.

The ACCA has released a decision in United States v. Hellgenberger.

Finally, while not directly related to the issue of deportation, the military judge found that counsel provided appellant inaccurate advice about the possibility of parole.  Captain N was unaware that as a non-citizen, appellant was ineligible for parole.  Additionally, appellant, as a non-citizen, was and remains ineligible for certain release programs.  Appellant was not aware of these “collateral impacts of his citizenship status until he in-processed at the [United States Disciplinary Barracks].”

Here is a Military.com piece about new Army retention control points.  You need to know this when negotiating PTA’s or alternative resolutions, and after sentence is announced.

Official Army guidance was released on Jan. 28, directing new changes to the RCP program. These changes only affect Soldiers in the ranks of private to staff sergeant. Privates through privates first class can retain enlistment for up to eight years. Specialists and corporals are allowed 12 years, while promotable specialists and corporals can stay in for up to 15 years. Sergeants are allowed 15 years, promotable sergeants, 20 years, and staff sergeants are authorized 23 years.

Courtesy of fourthamendment.com here are links to three law review articles which discuss law enforcement surfing of computers.

Andrew Vahid Moshirnia, Separating Hard Fact from Hard Drive: a Solution For Plain View Doctrine in the Digital Domain, 23 Harv. J. L. & Tech. 609 (2010)
R. Bruce Wells, The Fog of Cloud Computing: Fourth Amendment Issues Raised by the Blurring of Online and Offline Content, 12 J. Const. L. 223 (2009)

Lily R. Robinton, Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence, 12 Yale J.L. & Tech. 311 (2010).

The QuanticoSentry reports:  Marine Corps National Capital Region courts-martial results.

Yuma Sun has this report on a Marine missing for 10 days, the subject of “an extended ground search in the northwest part of town during his absence.”

As part of his punishment, the Yuma Marine who went missing for 10 days last month has been reduced in rank, the Marine Corps said on Friday.

Professor Goldsmith has an excellent entry in the new Military Law Review.  While his title is “Reflections on Government Lawyering,” I think it could be aptly titled being a law as an advisor.  The point is not that you have to be a good lawyer; questioning, researching, writing.  The point is how a lawyer acting as an advisor should approach his or her work. 

Let me begin by trying to articulate what an Executive Branch lawyer is supposed to do when he or she advises a client.  What is the lawyer’s obligation, especially when novel and difficult interpretative issues arise?  I naively thought this was a simple matter when I entered the OLC job.  I thought—and I testified to this effect at my confirmation hearings—that I was simply going to provide good faith, impartial legal advice.  I was influenced by one of my predecessors, William Barr, who said, “Being a good legal advisor [to the President] requires that I reach sound legal conclusions, even if sometimes they are not the conclusions that some may deem to be politically preferable.”

This was my attitude going in, and I think it’s a good attitude to have going in.  But as soon as I got there, I realized this attitude was too simple.  There are many countervailing considerations and pressures, almost all of which, I thought, were legitimate, and all of which made the job much more difficult.

Here’s an interesting case from the Fourth Circuit, courtesy of fourthamendment.com:

Defendant’s actions when seen in a stopped car did not amount to suspicious circumstances. The officer’s learning that defendant was under investigation for drug trafficking did not lessen his Fourth Amendment rights, and it added nothing to the reasonable suspicion calculus. United States v. Foster, 2011 U.S. App. LEXIS 3939 (4th Cir. March 2, 2011)[.]

More fallout from USS ENTGERPRISE

A former commanding officer of the USS Enterprise who faces possible punishment because of lewd videos shown to the crew has lost his job as head of a Singapore-based logistics group.

Rear Adm. Ron Horton, commander, Logistics Group, Western Pacific, was promptly relieved of command on Thursday by Adm. Patrick M. Walsh, commander of the U.S. Pacific fleet.

United States v. Zaruba.

The appellant has assigned three errors, but we need address only the first:

DID THE MILITARY JUDGE ERR WHEN HE FAILED TO REOPEN THE PROVIDENCE INQUIRY AFTER EVIDENCE OF THE APPELLANT’S DIAGNOSIS OF POST-TRAUMATIC STRESS DISORDER AND BIPOLAR DISORDER WERE INTRODUCED DURING SENTENCING IN ORDER TO QUESTION APPELLANT AND TRIAL DEFENSE COUNSEL OF POSSIBLE MENTAL RESPONSIBILITY AND CAPACITY TO STAND TRIAL DEFENSES?

Here is the argument transcript in Bullcoming v. New Mexico.

Here is Professor Friedman’s initial thoughts.