Anyone watching the election results last night would've noticed that the victorious Republican nominee for PA governor had a headshot with his uniform on. At first, I thought that perhaps it was a picture grabbed by the news from the internet, and that Mastriano himself had not told outlets to use it. But the photo below is from his campaign website. It is obviously inappropriate for a political candidate to campaign with a photo of himself in a military uniform. The military kitsch seems central to his image--after leaving the stage last night, he saluted the crowd.
Some possible resources in answering the question presented.
"4.3.2. Members included in subparagraph 4.3.1. may NOT, in campaign literature (including Web sites, videos, television, and conventional print advertisements): 188.8.131.52. Use or allow the use of photographs, drawings, and other similar media formats of themselves in uniform as the primary graphic representation in any campaign media, such as a billboard, brochure, flyer, Web site, or television commercial. For the purposes of this policy, “photographs” include video images, drawings, and all other similar formats of representational media. " DODD 1344.10.
Christopher Daniel Carrier, The Possibility of Special Verdicts by Court-Martial Panels, 83 Mont. L. Rev. 1 (2022).
"This article posits that a court-martial panel, unlike the jury in a civilian criminal trial, could be required by Congress to return a special verdict rather than a general verdict. The peer jury and the court-martial panel are now superficially very similar in function, but they differ in origin and authority such that legal and historical arguments about the powers of the jury
do not necessarily apply to the court-martial panel."
From time to time, the editors may open a post to comments. Comments will only be approved if they substantially contribute to the discussion of the issue in the post--meaning there is a presumption against approval. Anonymous comments will never be approved.
Editor's note: This is a post produced by one of NIMJ's recent observers of the military commissions at Guantanamo.
At the end of an illuminating and distressing week of hearings in the Al-Nashiri case, the paradoxes at Guantanamo Bay continue to unfold. Currently, a Commission is hearing arguments rooted in a bid to suppress evidence allegedly tainted by coercion and prompt the prosecution to take the death penalty off the table.
Clean shaven and in Western dress, last Monday, Al-Rahim Hussein Al-Nashiri made a brief appearance in what has been labeled the most modern courtroom in the world. After the alleged “mastermind” of the terrorist attack on the U.S.S. Cole had left the room, his lawyers proceeded to ask a witness whether he could confirm that Al-Nashiri was the “dumbest terrorist” a high-ranking CIA official had ever met. While the witness, Dr. James Mitchell, could not oblige in this respect, he did have significantly more remarkable testimony to offer.
Recalling Langley’s first attempts to persuade him to contribute to the development of enhanced interrogation techniques, Dr. Mitchell described how he eventually overcame his reticence and mustered the “guts” to do what he considered needed to be done to prevent thousands more Americans from being murdered in terrorist attacks. Behind layers and layers of technological and physical security measures, the courtroom stared at a screen, watching as counsel for the accused, Anthony Natale, and Dr. Mitchell, at a remote, undisclosed, location, proceeded down the rabbit hole of two decades of War on Terror.
Originally, the techniques had been developed to teach Air Force recruits how to withstand interrogation at the hands of the enemy. It was important to apply them properly—there were precisely defined limits for periods of sleep deprivation, decibel levels on loudspeakers had to be carefully monitored and a correct slap demanded a spreading of the fingers as well as exact targeting of the cheek. The properties of the “walling wall” and dimensions of both the “big box” and the “small box” that Dr. Mitchell and his fellow psychologist, Dr. Bruce Jessen, built, were regulated as carefully as the brightness of the lamps that Al-Nashiri eventually learned to avoid by voluntarily crawling into the small box. The same was true for the frequent short, occasional 20-second and rare 40-second “pours” that Dr. Mitchell controlled.
Once, as he was “expelling water from his sinuses”, the scrawny subject almost slipped out of the gurney to which he was strapped. This was the last time that Al-Nashiri was waterboarded. Dr. Mitchell was adamant about interrogating by the book. For this reason, he became furious when “NX2” appeared at one of the ten black and other interrogation sites that Al-Nashiri had been transported to and started applying unsanctioned techniques from Korea, Viet Nam and South America, when the accused refused to address him as “Sir”. A belt to strap Al-Nashiri’s wrists behind his back as he was suspended from the ceiling, a broomstick secured in the back of his knees as he was shackled and bent over backwards, a stiff-bristled brush to rigorously scrub both ends of the digestive system, a garden hose to “force feed” from the back end and finally a loaded pistol and a power drill for a mock execution—these were tools and methods that Dr. Mitchell did not approve of.
After shouting matches with NX2 and his own involuntary confinement, Dr. Mitchell protested in Langley and succeeded in bringing the “hard times” to an end. Still, years later, when Dr. Mitchell was called to sit in while Al-Nashiri was being questioned by the FBI rather than interrogated by the CIA, he did offer the occasional reminder that it would be better to avoid a return to the “hard times”. In these later years, Dr. Mitchell would bring Al-Nashiri new novels to read and ensure that he could share meals with the other detainees. Once, when Al-Nashiri requested that Dr. Mitchell bring him a Big Mac from the Guantanamo Bay McDonalds and was reminded that the dish he requested likely did not meet Halal standards, Nashiri replied “I don’t want you to tell me if the Big Mac is Halal, I want you to bring it.” In a very odd way, it seemed that Dr. Mitchel had evolved from a tormentor, to a protector and finally a friend of an Americanized Al-Nashiri.
Strange as it may seem, this type of perplexing contrast is not unusual at the Guantanamo Bay Naval Station. In some respects, it is an idyllic place, with many features of a suburban American town or a holiday resort, inhabited by warm and hospitable people that look forward to the Mongolian barbecue on Wednesday nights and snorkeling in the Bay at the end of their shift. At times, one does forget about the tortured detainees, several of them likely America’s greatest enemies, being held at an undisclosed location on the island.
Certainly, much time has passed since the first of them were brought to the island shortly after the towers came down. The cages at Camp X-Ray are now completely overgrown and the orange jump suits associated with a very different set of prisoners. Still, for all the efforts to ensure that various structures on the island, most notably the “Expeditionary Legal Complex”, are of a temporary character, there is a palpable element of permanence to the site. One suspects that even when this most technologically sophisticated courtroom in the world has been razed, it will not be possible to unring the deafening bell of hypocrisy that was sounded here.
In Horne, the AFCCA writes that the Appellant was found guilty by an "enlisted" panel of sexual assault by causing bodily harm. He was sentenced to RiR2E4 and a DD. He raised five issues.
(1) TC and SVC created an appearance of unlawful influence by interfering with the attempt by the Air Force Office of Special Investigations (AFOSI) to interview JC’s spouse. There was extensive litigation on the issue. The MJ determined the defense failed to meet the initial requirement of showing "some evidence of unlawful influence." However, the MJ went on to suggest that were there enough and had the Government failed to disprove unlawful influence, "“the present status of this case and its current participants” together with all the facts and circumstances of the entire proceedings “prove beyond a reasonable doubt: (1) that there is no intolerable strain upon the public’s perception of the military justice system; and (2) that an objective, disinterested and fully-informed observer would not harbor a significant doubt about the fairness of the proceeding.”" The AFCCA ultimately finds against Appellant. The court makes many interesting comments, including
[A]lthough perhaps improperly carried out, as indicated above the apparent motives behind the actions of Capt JP and Capt AS were not illegitimate. The military judge found as fact that “[n]o effort or failure to act by any participant, including [Capt AS] and [Capt JP], was driven by a motive to gain some unfair advantage or harass the accused,” and this finding was not clearly erroneous.
(2) Conviction on a theory of sexual assault that was not charged violated his right to due process. This appears to be a recurring issue.
Appellant argues that his Fifth Amendment due process rights were violated because he was convicted on a theory of sexual assault that was not charged. In his view, he was convicted of sexual assault because the court members found that JC was incapable of consenting due to intoxication instead of the charged bodily harm theory. Appellant argues the Government should have charged the two theories in the alternative but by selecting only a bodily harm theory “it allowed the members to arbitrarily impart their subjective sense of how impaired they believed [JC] was at the time of the alleged offense.”
(3) The MJ abused his discretion by allowing irrelevant evidence of JC’s level of intoxication. This is related to the charging decision above.
(4) Legal and factual insufficiency.
(5) The MJ erred by precluding cross-examination of JC under Mil. R. Evid. 412 regarding other sexual behavior with Appellant. The court: "We assume without deciding that the military judge’s ruling limiting the cross-examination of JC was influenced by an erroneous view of the law and was an abuse of discretion. However, we find the assumed error was harmless beyond a reasonable doubt so relief is not warranted."
In addition, there were 16 Grosty's.
United States v. Raines, __ M.J. ___ (N-M Ct. Crim. App. 2022). A petition for writ of mandamus.
Chief Justice Roberts once said, “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”1 With that in mind, we consider whether a military judge may strike a term in a negotiated plea agreement and then rewrite the agreement to his own liking over the objection of one or both of the parties. The President does not have a line-item veto and neither does a military trial judge. We answer in the negative.
During trial, the military judge expressed concern with the term that "A Bad Conduct Discharge shall be adjudged.”
United States v. Soler. Appellant pled guilty to six instances of obstructing justice condensed into one specification. As part of a PTA, the government dismissed two sexual assaults, one indecent recording (his extramarital sex with a junior Soldier), and a general order violation. Appellant was sentenced to six months, RiR, and a BCD. The CA only approved an RiR to E2, per the PTA.
On appeal the Appellant claimed IAC for failing to "present evidence pertaining to his ten years of service in the Army, moving for admission of his enlisted record brief (ERB), or presenting evidence of appellant's combat-related [X] diagnosis."
After reviewing the case and affidavits provided by defense counsel, the court finds no error or prejudice.
The defense had prepared a sentencing case by interviewing witnesses, getting documents, and getting the Appellant's medical records. But the decision was made to give only an unsworn statement. The TC submitted no documents in sentencing and the defense submitted some personal photographs.
Interestingly, the MJ asked the Government if they would provide the ERB, an invitation the TC declined. Slip op. at 2.
Query, could the MJ have ordered the TC to produce the ERB as a court exhibit?
Can the military judge order the Government to produce the whole official service record, subject to objections from defense?
If then introduced, could the TC try to offer aggravation evidence based solely as rebuttal to the ERB?
Affidavits from appellant's military and civilian defense counsel outlined their efforts in preparing both character and mitigation evidence for the pre-sentencing hearing and the tactical reasons for ultimately editing the presentation of that evidence. Appellant's military defense counsel submitted an affidavit stating she interviewed several family members, friends, supervisors, and colleagues of appellant and prepared those witnesses to testify at appellant's presentencing hearing. Concerned that good soldier evidence would allow the government to present evidence of appellant's prior misconduct of an unfounded allegation of and obstruction of justice, civilian defense counsel requested this testimony be reduced to written statements.
What was the concern?
In 2013, appellant was investigated for the offense of [X]. While the [X] was unfounded, there was evidence in the investigation that appellant made efforts to obstruct justice during the investigation by asking a witness not to talk to the military. Appellant's witness production request included ten witnesses, both military and civilian, that appellant asserted would testify as to his rehabilitative potential during the pre-sentencing hearing. Given that appellant plead guilty to obstruction of justice approximately five years after his prior attempt to do so was relevant information as to both appellant's good military service and rehabilitative potential. The government could have utilized appellant's prior efforts to obstruct justice by: (1) cross-examining his character witnesses about this prior misconduct in order to test the strength of their opinion as to his rehabilitative potential, or (2) presented the information as rebuttal evidence concerning appellant's rehabilitative potential or good military service. See Scott, 81 M.J. at 86 (C.A.A.F. 2021) ("[R]ecogniz[ing] that, in some cases, trial defense counsel may not wish to call witnesses on sentencing who, through their testimony, may open the door for the government to present additional adverse evidence.").
So, in this case,
[The] decision to constrain the presentation of character evidence reasonable under the circumstances. See United States v. Datavs, 71 M.J. 424 (C.A.A.F. 2012) (Defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so.").
The court did note that even if there was IAC it would not have been prejudicial.
Despite appellant's assertions to the contrary, the conduct to which appellant pied guilty was significant in not only attempting to impede a law enforcement investigation but leveraging his rank and position of authority to influence subordinates to commit a criminal offense for his benefit. Even if defense counsel presented the few pages of medical evidence of appellant's - diagnosis in 2017 and appellant's ERB, there is no "reasonable probability" that the sentence would have been any different given the severity of appellant's misconduct.
Cheers, Phil Cave
In State v. Terrance Police, SC No. 20528, 2022 Conn. LEXIS 123 (scheduled for release May 10, 2022), the issue was whether “touch DNA” was good enough for probable cause to get an arrest warrant. Here is the important part of the decision saying it wasn’t.
[T]he DNA evidence used to describe the suspect was not a single source sample known to have come from the perpetrator. Rather, it was “touch DNA,” also known as “trace DNA,” from multiple sources that might or might not have come from the perpetrator—something the police simply had no way of knowing when they applied for the John Doe arrest warrant. Notably, the state has not identified a single case, and our research has failed to uncover one, in which mixed partial DNA profiles from touch DNA provided the description of a suspect in a John Doe arrest warrant. Touch DNA “is a term used to describe DNA that is left behind just by touching an object …. Notwithstanding its name, however, touch DNA does not necessarily indicate a person’s direct contact with the object. Rather, according to [experts], abandoned skin cells, which make up touch DNA, can be left behind through primary transfer, secondary transfer, or aerosolization.” (Internal quotation marks omitted.) State v. Dawson, 340 Conn. 136, 153, 263 A.3d 779 (2021). Even when a person touches an object, “DNA is not always detectable, meaning that it is possible to have someone touch an object but not leave behind detectable DNA because … some people leave more of their skin cells behind than others, i.e., some people are better ‘shedders’ of their DNA than others. There are also other factors that affect the amount of DNA left on an object, such as the length of contact, the roughness or smoothness of the surface, the type of contact, the existence or nonexistence of fluids, such as sweat, and degradation on the object.” Id., 154.
Major Oluwaseye (Mary) Awoniyi, I Do, But Only in a Jurisdiction with Legal Separation: A Proposed Remedy for the Flawed Affirmative Defense in Extramarital Sexual Conduct Cases. No. 6, The Army Lawyer (2021) at 31.
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