See what you think? I’ve posted the article about LtCol Chessani not being prosecuted, but facing a BOI. One of the papers reported:
Instead, the Marine Corps will convene a Board of Inquiry to hear testimony and recommend whether Lt. Col. Jeffrey Chessani should be demoted to major for purposes of retirement.
Even if such a recommendation is made and then accepted by the Secretary of the Navy, Chessani’s retirement pay would still be based on being a lieutenant colonel.
In People v. Michael James Tecklenburg, (2009, 169 Cal. App. 4th 1402) the California Court of Appeals considered the relevance and applicability of involuntary "pop-ups" and temporary Internet files (TIF or "cache") to the applicable statute. California’s Penal Code section 311.11(a) makes it illegal to "knowingly posses or control" depictions defined as child pornography according to state law (P.C. 314, subd. d). The court specifically considered the variables required to establish "control".
In Tecklenburg, the court denied appeal based on the State’s discovery having established the cumulative applicability of the following variables:
- the user actively searched for child porn;
- the user visited child porn web sites;
- the user explored beyond the first page of said web sites;
- the user clicked on images on, at least, one web site;
- the images appeared and were accessed multiple times;
- the user enlarged thumbnail images;
- the images were “part of a series or collection”;
- the size and format did not match that of a pop-up;
- similar, and sometimes identical, images were found on both the user’s home and work computers.
While I don’t agree with the entirety of the court’s findings, said computer forensics expert Jeff Fischbach, nor am I comfortable that the court fully appreciates the non-standardized and ever-evolving nature of the Web, or the limitations of computer forensics, I do think that the decision itself serves as a good minimum benchmark, or litmus test, for both prosecution and defense in similar cases.
FORT BLISS, Texas — A Fort Bliss soldier charged with murder in the shooting death of a local high school student has been found incompetent to stand trial, the U.S. Army announced Saturday.
Spc. Gerald Polanco, 37, will be transferred within the next week from the Otero County Detention Facility in New Mexico to the Bureau of Prisons and hospitalized for up to four months, the Army said in a news release. Justice Department officials plan to place Polanco in a medical center in Missouri or one in North Carolina.
Houston Chronicle.
A decorated U.S. Soldier, from the State of Texas, filed suit today in U.S. Federal Court in Washington DC against a British Contractor for injuries sustained during a reckless shooting incident in Iraq.
Former U.S. Army Sergeant Kadim Alkanani is suing London-based Aegis Defence Services Limited, for an incident on June 3, 2005, in which Aegis contractor’s opened fire without warning on Sergeant Alkanani’s unit moments after they had passed through a check point on their return to base, thereby injuring Sergeant Alkanani and ending his promising military career.
Sgt. Alkanani was stationed in Iraq at the time and was a decorated soldier and a recipient of many awards, including the National Defense Service Medal, The Global War on Terrorism Service Medal, the Iraq Campaign Medal, the Army Services Ribbon, the Overseas Service Ribbon, and the Armed Forces Reserve Medal. (Note, none of these are personal awards and are given to every soldier based on time or location of service).
This story is in the Valley News, by Paul Young.
One year ago today, in a precedent-setting trial in Riverside, former U.S. Marine Sgt. Jose Luis Nazario was acquitted of charges he unlawfully killed enemy combatants in Iraq. Now, the ex-serviceman is waiting for a former comrade’s trial to wrap up before he begins the process of "taking his own life back.”
An April court-martial at Camp Pendleton of a second comrade in the case, Sgt. Ryan Weemer also ended in acquittal. Court-martial for the third, Sgt. Jermaine Allen Nelson, is expected to get under way next month.
August 28, 2009 | 1:11 pm
The Marine Corps has decided not to seek to reinstate criminal charges against a former battalion commander at Camp Pendleton for a 2005 incident in which his troops killed 24 civilians in Haditha, Iraq.
By Kevin Baron, Stars and Stripes
Mideast edition, Friday, August 28, 2009
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By Steve Mraz and Seth Robbins, Stars and Stripes
Mideast edition, Friday, August 28, 2009
Army officials are investigating how a Special Forces soldier was able to simply disappear last week, a few hours after his conviction for the kidnapping and sexual assault of a German woman.
Kelly A. Stewart was not guarded, and legal experts point to a gray area in the U.S. Military Manual for Courts-Martial that leaves the securing of a convicted soldier to a judge’s discretion. It also requires that the government specifically demand the soldier be detained before sentencing.
Readers will remember that there is a great deal of talk and decision making about cases where an appellant has failed to file his or her petition for review with CAAF in a timely manner. Here is a link to CAAFLog for a history of the discussions. CAAF determined that the filing deadline is jurisdictional and has been dismissing cases. Prior to CAAF’s decision on the deadline appellant’s would routinely have filings “out of time” granted. Regardless of how that became something of a habit, many petitioners have now lost their right to petition to CAAF because CAAF is now enforcing the rules. Hopefully the number of these cases is dwindling as the appellate shops get control of their docket and establish procedures to ensure continued representation and timely filings. Here, in a “concurring in the result” Chief Judge Efron, again, reminds the TJAG, that in such cases the TJAG could certify them to CAAF. There are some potential political and theoretical concerns with that procedure. Regardless, there seem to be some good reasons why the TJAGs should in fact certify Rodriguez like cases, we’ll see. Perhaps the TJAGs could at least certify the non pro-forma cases. Some petitioners petition CAAF because they can, not necessarily because they have meritorious issues. I call these pro-forma cases. Anyway, here’s the Journal entry that got me started.
No. 09-0030/AR. United States, Appellee v. Josh R. RITTENHOUSE, Appellant. CCA 20050411. On consideration of Appellant’s petition for reconsideration of this Court’s order dismissing Appellant’s petition for grant of review as untimely filed, __ M.J. __ (Daily Journal, June 25, 2009), it is ordered that said petition for reconsideration be, and the same is hereby denied.
EFFRON, Chief Judge (concurring in the result):
NMCAA’s decision in United States v. Johnson, NMCCA 200900141 (N.M. Ct. Crim. App. 25 August 2009), nicely sets out the courts view of when and how bad language is subject to prosecution as indecent. A totality of the circumstances factual and contextual test must be used it seems.
The precise parameters of what constitutes indecent language have been the subject of considerable debate over the years.
The court examined the impact of United States v. Brinson , 49 M.J. 360 (C.A.A.F. 1998) and United States v. Negron, 60 M.J. 136 (C.A.A.F. 2004). In Negron the court stated that prospectively:
Court-Martial Trial Practice Blog
