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I refer from time to time to court-martial decisions from other countries. Obviously, they are not dispositive here, but there can be some interesting arguments or points come from them, which is why I bring you R v. Jordan, a decision of the Supreme Court of Canada addressing court-martial speedy trial issues.

In Jordan the appellant sought dismissal of his case for a denial of speedy trial. In summary, the court argued,

Per Abella, Moldaver, Karakatsanis, Côté and Brown JJ.: The delay was unreasonable and J’s s. 11(b) Charter right was infringed. The Morin framework for applying s. 11(b) has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over‑burdened trial courts. From a practical perspective, the Morin framework’s after‑the‑fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.

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Prof. Cole at CrimProfBlog brings us,

Nathan Lilly (Sandra Day O’Connor College of Law at Arizona State University) has posted The ‘High Skies’: Establishing Venue for Prosecutions of Crimes Aboard Aircraft (57 Crim L. Bull., no. 1, Forthcoming) on SSRN. Here is the abstract:
A fundamental concept in criminal procedure is that the trial must take place where the crime was committed. Without proper venue, a defendant cannot be found guilty of the charged crime. But where is venue when the crime is committed on an airplane traveling through the sky at 500 miles per hour? This article analyzes United States v. Lozoya, a 2019 decision from the Ninth Circuit Court of Appeals that broke from the conventional wisdom of the Tenth and Eleventh Circuits in holding that the proper venue is the federal judicial district over which the plane was flying at the time of the crime. No legal scholarship has ever considered criminal venue in this particular context. This article analyzes the two main federal venue statutes, 18 U.S.C. §§ 3237 and 3238, and argues that neither the Ninth Circuit approach nor the Tenth or Eleventh Circuit approaches view the law correctly. The most logical outcome — prosecution in the district in which the plane ultimately lands — is undisputed. But the plain meaning of the venue statutes supports the assumption that airplanes in the “high skies” are a lot like ships on the high seas. When the Ninth Circuit reconsiders this issue en banc in 2020, it can solve the problem by holding, for purposes of criminal venue, that American airspace is considered “outside of any district” and thus the prosecution can bring charges where the defendant is arrested (i.e. the landing district).
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Over at Global Military Justice Reform blog I posted about the NDAA 2016 and a “how are we doing” note.

I begin with,

In the U.S. National Defense Authorization Act 2016 (NDAA) the Congress made some significant changes to the UCMJ and the President’s follow-on Executive Order directed conforming changes and implementation regulations in the Manual for Courts-Martial (MCM). All of the materials are available at the DoD Joint Service Committee on Military Justice website.

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Justin Oshana’s Sept. 1 Tuesday Opinion essay, “How Trump poisoned the prosecution of Bowe Bergdahl,” was exceptionally insightful, accurate and fair. I can attest to the accuracy of Mr. Oshana’s depiction of the complexity of the case.

Whatever one’s opinion about the actions of Bowe Bergdahl on the battlefield, we should, as Mr. Oshana reminds us, stay mindful of the risks of allowing partisan fervor and preconceived notions to politicize our judicial system, particularly that of the U.S. military. I witnessed attempts by certain members of Congress to do just that when we brought Mr. Bergdahl home, and I’ve seen it happen all too often from this commander in chief over the past three years.

When public confidence in our institutions and our leaders is flagging, we would do well to remember that pursuing a justice system fair and equal for all — free of political influence — and a decision-making process based on sound judgment and an honest effort to confront difficult truths are goals not easily achieved but always worth the effort.

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As a reminder, Prof. Cole brings us, Michael Murphy (University of Pennsylvania Law School) has posted The Search for Clarity in an Attorney’s Duty to Google on SSRN.

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much attorneys should be searching. This Article examines the following questions: is the “Duty to Google” merely yet another example of how attorneys must become proficient in technology to meet their professional ethical obligations? Or is it something more? Where should this duty be codified, if anywhere? At what point does technology like a search engine become so “mainstream” that attorneys have a duty to use it or face allegations of malpractice? How will attorneys know how much Googling is enough?

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Applying this rationale, I believe, contrary to the view expressed by my brothers, that there is more than a possibility that appellant’s trial was adversely affected by unlawful command influence. My experience as an officer and lawyer in the Army is that, when a commander says he is angry about individuals giving favorable testimony on behalf of accused soldiers, people in his command pay attention. My experience also convinces me that, when this commander is a major general, and he expresses his displeasure in this regard in lectures over a period of a year and is joined by members of his staff and other subordinates in publicizing his view, a reasonable person could conclude that every trial in that jurisdiction was very likely to have been affected by such unlawful actions.

United States v. Whitaker, 21 M.J. 597, 601-02 (A.C.M.R. 1985)

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The Ndavy fired three SEAL leaders in the aftermath of the alleged rape on the Iraq air base and charged one operator, an enlisted SEAL, with sexual assault, aggravated assault via strangulation and assault by battery for allegedly biting the victim on the face, according to his charge sheet. He faces a court-martial in November. A hearing in the case was held Friday at Naval Base San Diego. At the hearing, the lawyer for the SEAL, said he was concerned his client, who identifies as “non-white,” cannot get a fair trial because of systemic racism in the military justice system, pointing out that there are no Black judges on the Navy bench.

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On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl.

  • “Thus, simply stated, it was the totality of the circumstances surrounding Appellant’s misconduct rather than any outside influences that foreordained the Army’s handling and disposition of this case. Therefore, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings. Accordingly, we hold that there was no appearance of unlawful command influence in this case, and we affirm the decision of the United States Army Court of Criminal Appeals.
  • As a threshold matter, based squarely on the plain language of Article 22, UCMJ, 10 U.S.C. § 822 (2012), Article 37, UCMJ, and R.C.M. 104, we hold that Senator McCain was capable of committing unlawful command influence and that a sitting president of the United States is also capable of committing unlawful command influence. Slip op. at 6.
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