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Comment on Carissa Byrne Hessick, The Expansion of CP Law.  21 NEW CRIM. L. REV. (coming soon).

As military defense counsel, we have had to deal with and address the “expansion” of CP into what is often referred to as erotica.  Ms. Hessick notes an expansion of CP law to cover possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.

These prosecutions have expanded the definition of the term CP well beyond its initial meaning. What is more, they signal that CP laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

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This Court unequivocally endorses the Supreme Court’s observation that “[f]ederal courts have an independent interest in ensuring that … legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).

United States v. Boyce, 76 M.J. 242, 253 (C.A.A.F. 2017).

The NMCCA has decided United States v. Brown — one of the questions:

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I, currently, ask for the following as a minimal initial discovery request.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner.  This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked.  The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue.  In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.

We can expand the initial request as more information comes to light.  I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

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The Supreme Court decided Ortiz v. United States, an appeal from CAAF, today.  Bottom line,

This Court has jurisdiction to review the CAAF’s decisions. The judicial character and constitutional pedigree of the court-martial

system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.

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The U.S. Supreme Court today took up Garza v. Idaho, No. 17-1026, involving the intersection of two recurring themes: lawyer decisions v. client decisions in the conduct of a case and how to apply rules developed for trials to the context of plea-bargained cases, which most cases are now.
In the course of a criminal trial, the lawyer makes most of the decisions, but a few are reserved for the client personally.  This “rule” or assignment of duty applies in courts-martial.  Whether to appeal is a client decision.  In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court dealt with the issue of ineffective assistance claims for a lawyer’s failure to appeal, with or without consulting the client.  If the lawyer is found to have performed deficiently, the “prejudice” question is only whether there is a reasonable probability the client would have appealed, not that he would have prevailed on appeal.
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My first GCM involved eyewitness identification and a motion to suppress based on an improperly suggestive show-up when the client was arrested.  He was handcuffed in the back of the police car and the armed robbery victim was brought to the police car and asked ”is that him” or words to that effect.  Since then I’ve not had a case where there was a serious question of identification.  That said, Prof. Miller, one of my favorite evidence bloggers has this piece.

Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can’t Remember Making Them?

He first notes that misidentification contributed to 75% of exoneration cases.  Then he moves to Mil. R. Evid. 801 and how an out of court identification may not he hearsay.

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From time to time  I recommend articles, cases, or books to read that may be of interest and help to practitioners.  Here are couple of plays to add to the mix, courtesy of Global Military Justice Reform blog, and I quote.

Anthony Thommasini of The New York Timeshas written this strong and quite positive review of the opera “An American Soldier,” concerning the suicide of U.S. Army Private Danny Chenand the ensuing court-martial. It’s playing in St. Louis.

Can you think of another opera that concerns military justice? Benjamin Britten‘s Billy Budd and the more obscure My Lai come to mind. There is also an Overture to The Andersonville Trial, about the notorious Confederate prison camp.

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