Oh well, back from vacation. Lot’s to catch up on.
Here is an interesting article:
Anthony E. Giardino, COMBAT VETERANS, MENTAL HEALTH ISSUES, AND THE DEATH PENALTY: ADDRESSING THE IMPACT OF POSTTRAUMATIC STRESS DISORDER AND TRAUMATIC BRAIN INJURY, 77 Fordham L. Rev. 2955 (2009).
The blog Opinio Juris is one of many frustrated with the type and quality of comments on blogs. So, here’s what they are doing about it.
by Roger Alford
Readers will note that today Opinio Juris has incorporated a new comment feature that allows our readers to help regulate the quality of comments. The comment rating feature allows readers to vote “Yay” or “Nay” to any comment that is posted. After a certain number of negative votes are cast to a comment (we are still testing the precise number), the comment will be hidden from view. The comment will not be deleted, only hidden. Anyone who wishes to read the comment can still do so, but it will require an affirmative step of clicking on the comment to maximize the text. This is a middle path between our previous approach of completely unfiltered comments, and the other extreme of censoring inappropriate material.
Kenneth Anderson, Professor of Law, Research Fellow, The Hoover Institution on War, Revolution and Peace, Stanford University.
NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009).
AFCCA today issued a fascinating published opinion, which I’ve posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel.
Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.
Prof. Corey Yung has a very interesting post, one of several more to come, about how to measure judicial activism. As best I can tell it relates to the panel, rather than individual appellate judges. But non-the-less, it’s an interesting way to look at how activist a court may be.
So, appellate judges are more “activist” when they reverse district court judgments under a deferential standard at a higher relative rate compared to reversals using a non-deferential standard. My exact measure (or activism “score”) for activism is reversal rate in non-deferential cases minus the reversal rate in deferential cases. This measure captures when a judge is not deferring to other constitutional actors when we would normally expect him or her to do so.
The measure has the advantage of not being based upon the substantive outcome of the case. A judge can use either a deferential or non-deferential standard and still find for either party. Since we might think that activist judges are not keen to make clear that their decisions are actually activist, looking at substantive outcomes can be tricky as judges try to mask an appearance of activism. Since standards of review are usually non-controversial (in that the parties rarely dispute over which standard applies) formal rules, we might think that there will be less ability for judges to mask their activism. Ultimately, the failure to defer by a judge over time indicates a relative propensity for activism even if we cannot say for certain that any individual decision is activist. As will be clear in my next post, judges vary quite a bit in their deference under standards of review.
Clients usually ask me if they should write their congressperson. My answer is invariably no – unless you are their son or daughter, or unless you give them thousands of dollars in campaign funds every year.
For those who insist I always tell them to be careful what to say because that could come back to haunt them. The Army has just released an opinion in Scheuerman. In that case they cite to United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003). This is why I tell clients not to write their congressperson or IG on a pending case.
However, United States v. Scheuerman , __ M.J. ____ (A. Ct. Crim. App. 2009), gives you another reason to warn clients about what they say and to whom. (Although typically it’s often too late by the time you are involved.)
David Kocieniewski, Lawyer’s Ways Spelled Murder, U.S. Is Charging, NY Times, 20 May 2009.
He spent a decade as a top prosecutor, trying murder cases in New Jersey, drug cases in federal court and a wide range of offenses in the military justice system.
He went on to become one of the state’s most prominent defense lawyers, representing clients as varied as Abu Ghraib defendants,. . .
Last week saw the exoneration of the 132nd person from death row since 1973. Paul House, who was on death row for 22 years and was scheduled for a new hearing, was exonerated after a DNA test proved he was not the perpetrator of the murder he was convicted of in 1986. Daniel Wade Moore became the 133rd exoneree when he was acquitted at a retrial for a 2003 rape and murder. Given the vast amount of people released from death row in the last 35 years, it is clear that capital punishment in the United States is fatally flawed and there is the unconscionable possibility to execute an innocent person.
ACLU Blog of Rights.
May 8, 2009
JOBS for JAGS Seminar
Presented by the Pentagon and DC Chapters of the FBA, the Federal Career Service and Young Lawyers Divisions of the FBA, and the Judge Advocates Association
Location: Army and Navy Club, Washington, DC
This full-day event is designed for junior and senior military attorneys transitioning from active duty to civilian or government practice. The seminar will feature panels of top attorneys from the Department of Justice and other government agencies, as well as from private practice and industry, to share tips and insights on finding employment. Many of the panelists are retired or former Judge Advocates and will share their tips on selling your skills as a JAG to government employers, law firms, and corporations.
Registration: View Brochure Register online at www.jaa.org For a detailed agenda, visit http://www.jaa.org/jobsforjags.htm
Here’s a NY Times opinion piece with various positions on the current don’t ask, don’t tell policy.
Court-Martial Trial Practice Blog