Human Events reports that:
One of three Navy SEALs facing a court martial announced at a rally Saturday that he has passed a polygraph test, casting doubt on the Pentagon’s case against him.
Rep. John Shadegg (R.-Ariz.) who attended and spoke at the rally, told HUMAN EVENTS that “while the lie detector test results won’t be admissible in a court of law and their jury will never know that he passed, it is nonetheless important for the American public to know.
Not all states allow a prior court-martial conviction into evidence. But as the decision in Oliver v. Commonwealth, 60 S.E. 2d 567 (2005), shows, the Commonwealth of Virginia considers a prior special court-martial conviction admissible in sentencing.
In principle, we accept that certain "wholly unconstitutional" convictions can be collaterally attacked and disqualified for consideration during sentencing. United States v. Tucker, 404 U.S. 443 (1972). But, when available, the collateral attack remedy would not be offered on the ground that the invalid UCMJ conviction rested on something other than the "laws of … the United States" as that phrase appears in Code § 19.2-295.1. Instead, the invalid UCMJ conviction would be excluded from trial, if at all, because it violated a higher law of the United States: the Federal Constitution.
In any event, we need not address Oliver’s hypothesis further. He does not raise on appeal any constitutional objections in contest of his UCMJ convictions.
Guantanamo Bay Detainees in the Courts, an eBook by Leagle.com.
Legal experts will analyze the Guantanamo Bay detainee cases for decades to come, but presented here are the court opinions themselves, unedited and in their entirety, so that readers can review a court’s reasoning firsthand, unfiltered and without bias.
The opinions are in answer to rulings appealed by both the detainees and the U.S. government, as well as other interested parties, from the earliest rulings in 2002 through the end of 2009. While most of the decisions in the collection involve Gitmo detainees directly, other related cases are included for context and to fill out the evolution of how the U.S. courts are handling the laws and policies resulting from the war on terror.
Carissa Byrne Hessick, Disentangling CP from Child Sex Abuse, 88 Washington L. Rev. __ (2010).
Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.
Here are the military justice related articles in the new Army Lawyer.
Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment
“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial
Sentencing Law & Policy reports:
This remarkable local story out of Montana, which is headlined "Man blames PTSD for child pornography downloads," reports on another notable sentence break given to a notable child porn offense. Here are the details, which spotlight many of the hottest issues in current federal sentencing debates:
An Iraq war veteran in Helena, who claimed that post-traumatic stress disorder contributed to his viewing child pornography, was sentenced Tuesday to two years in federal prison, to be followed by 10 years of supervised probation.
I posted the other day about an 11th Circuit decision on extra-territoriality of 18 U. S. Code 2251A. Here is an article, courtesy of CrimProfBlog that may be of some interest on that subject.
Jeffrey A. Meyer (Quinnipiac University – School of Law) has posted Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law (Minnesota Law Review, Forthcoming) on SSRN.
Scores of federal criminal and civil statutes are “geoambiguous” – they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly recites a “presumption against extraterritoriality” but just as often overlooks it and opts to apply geoambiguous law abroad. The Court’s inconsistency bespeaks a deep divide among scholars. Judicial unilateralists favor liberally imposing U.S. law abroad to respond to unwanted effects from foreign conduct. Judicial territorialists favor restraint and a return to traditional territoriality to avoid international conflict. And judicial interests-balancers favor multi-factored, case-by-case consideration of whether it is “reasonable” to apply geoambiguous law abroad.
This Article advances a new approach – a proposed rule of “dual illegality” to govern how courts apply geoambiguous laws. Under a dual illegality rule, U.S. courts should decline to apply geoambiguous laws to penalize or regulate conduct that occurs in the territory of a foreign state unless the same conduct is also illegal or similarly regulated by the law of the foreign territorial state. A similar rule of dual illegality has worked for many decades as a limitation in countless criminal extradition treaties. A dual illegality rule would revitalize traditional territoriality values as a limiting principle on U.S. assertion of its law abroad, while also allowing extraterritoriality when there is the least likelihood of provoking political dispute. The response to greater globalization should be less jurisdictional contestability and more reliance on rules that do not invite judges – as the rules wrongly do now – to engage in policy-like assessments of the needs or interests of the United States in having its law applied to activity abroad. Courts should apply a dual illegality rule to decide the scope of geoambiguous law.
I’ve posted before about issues with forensic testing and police controlled laboratories (including military drug testing laboratories). Here is an article from my old crim law professor, a former Army JA. You’ve also heard me frequently talk about confirmatory bias in regard to police investigations and other investigations.
Paul C. Gianelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, to be published in the Utah Law Review.
One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 2002, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s recommendation. It also examines the counter arguments as well as alternative approaches, including additional measures that should protect forensic analyses from improper influence.
Thanks to Federal Evidence Review for a good summary of cases and issues involving 404(b) issues in federal courts.
New York Times reports:
The former military surgeon and Medtronic consultant accused of falsifying research about the benefits of a bone-growth product used on soldiers injured in Iraq is now under investigation for a possible court-martial, officials at the Walter Reed Army Medical Center said Wednesday. The investigation will determine if there is sufficient evidence to call the surgeon, Dr. Timothy R. Kuklo, back to active duty to face court-martial charges.
Court-Martial Trial Practice Blog