Background reading.
Anonymous participation optional--see instructions here. *** Topic: CAAFlog Pop-up: Gen Stewart’s Acquittal Time: Jul 1, 2024 12:30 PM Eastern Time (US and Canada) Join Zoom Meeting https://villanova.zoom.us/j/7841656237?omn=99036743966 Meeting ID: 784 165 6237 --- One tap mobile +16469313860,,7841656237# US +13017158592,,7841656237# US (Washington DC) --- Dial by your location • +1 646 931 3860 US • +1 301 715 8592 US (Washington DC) • +1 305 224 1968 US • +1 309 205 3325 US • +1 312 626 6799 US (Chicago) • +1 646 558 8656 US (New York) • +1 360 209 5623 US • +1 386 347 5053 US • +1 507 473 4847 US • +1 564 217 2000 US • +1 669 444 9171 US • +1 669 900 6833 US (San Jose) • +1 689 278 1000 US • +1 719 359 4580 US • +1 253 205 0468 US • +1 253 215 8782 US (Tacoma) • +1 346 248 7799 US (Houston) Meeting ID: 784 165 6237 Find your local number: https://villanova.zoom.us/u/adeQm3C2vS Is the military a "no means no" or a "yes means yes" jurisdiction? Is the absence of consent proved by expressed non-consent, or by the absence of affirmative consent?
Update: https://www.tpr.org/military-veterans-issues/2024-06-29/jury-of-generals-finds-two-star-air-force-general-not-guilty-of-sex-assault-in-historic-court-martial $60K fine, two months restriction, and a fine. Maj. Gen. Phillip Stewart has been acquitted by a panel of members.
Lindsay Lyon Rodman, Doing Away With the Military Deference Doctrine: Applying Lessons From Civil-Military Relations Theory to the Supreme Court. 99 N.D. L. Rev. 327 (2024).
United States v. IronhawkAn Article 62 appeal challenging the military judge's exclusion of Mil. R. Evid. 404(b) evidence: a ruling that proffered statements were not res gestae, that a statement that the accused would "kick her husband's b***" is not indicative of an intent to murder, and talking about divorce isn't even a crime, wrong, or character act for Mil. R. Evid. 404(b). United States v. K. DavisAnother Article 62 appeal which ACCA grants in a 22 page decision.
It is not us. Weebly has cut ties to Scribd, and weird code appears in the Weebly editor and published items. Sorry. Weebly will now only let us post documents in .pdf and, apparently, Word. As to the coding, we'll see what can be done to root out the Tribbles.
United States v. MetzA majority of the court, led by Judge Sparks addresses several questions of interest (with the Chief as sole dissenter): [W]as Appellant a suspect when first interviewed by Naval Criminal Investigative Service (NCIS) agents, triggering a requirement for Article 31(b) warnings? Second, did the lower court err in its application of Brown and its subsequent finding that trial defense counsel was not ineffective when he failed to move to suppress evidence derived after an illegal apprehension? The majority's first point of law is that it is an objective test used to determine if someone is a suspect, to which Article 31 applies. That answer is based on a totality of the facts, and the military judge's ruling on a motion is reviewed for an abuse of discretion. But, At times it can also be appropriate to consider the subjective view, looking at “what the investigator, in fact, believed, and . . . decid[ing] if the investigator considered the interrogated person to be a suspect.” Muirhead, 51 M.J. at 96. Designating someone a suspect for Article 31(b), UCMJ, purposes requires more than merely a “hunch.” Swift, 53 M.J. at 447. To which the Chief counters, In deciding this issue, it is essential to note that a “mere suspicion . . . triggers the obligation to inform [a] suspect of his Article 31” rights. United States v. Schneider, 14 M.J. 189, 193-94 (C.M.A. 1982) (emphasis added). Moreover, only a “relatively low quantum of evidence” is necessary in order for the rights advisement requirement to be triggered. United States v. Swift, 53 M.J. 439, 447 (C.A.A.F. 2000) (emphasis added). There are various dictionary definitions of "hunch."
The Federal Law Enforcement Training Center (FLETC) says this: Mere Suspicion: A “gut” hunch that criminal activity is afoot. There are no “facts” a law enforcement officer can use to explain or justify his or her “feeling.” This standard will legally justify a voluntary stop only. See also, Anthony J. Pinizzotto Ph.D.; Edward F. Davis M.A.; Charles E. Miller III, Intutive Policing: Emotional/Rational Decision Making in Law Enforcement. 73(2) Law Enforcement Bulletin, February 2004; Craig Lerner, Reasonable Suspicion and Mere Hunches. 59 Vanderbilt L. Rev. 407 (2006). You can see more here about what is sometimes referred to as a policeman's instinct. These facts show how less than a hunch transitions to more than mere suspicion. The agents went to the barracks that housed several persons who held keys to the maintenance building. They knocked first on a door that was ajar without knowing that Appellant occupied the room. The agents told Appellant they were investigating an incident at his workplace and asked if they could come inside to speak with him. Appellant agreed to talk and invited them in. The agents did not deliver Article 31(b), UCMJ, warnings. Appellant told the agents he did not know anything about the incident at the maintenance building and had not left the barracks area that morning. He said he had lent his key to someone, indicating that it could be lost, and that he had reported the missing key to his command. As Agent CP was scanning the room to ensure no one else was present, he noticed some shoes inside the bathroom that appeared to be wet, as if they had been laid out to dry. They were hanging on towel hooks and the insoles were nearby, propped on the toilet paper holder. Agent CP asked Appellant, “Hey are those Nikes?” Appellant said yes. It is interesting that the agents did not immediately seek a search authorization for the barracks room because they didn't think they had sufficient PC. Why not go to the base commander and the SJA anyway. They could still have staked out the barracks to see if he'd attempt to dispose of the shoes (an indicia of guilt) while waiting for the warrant. Once the Appellant showed up, they could still have asked for a PASS without telling him they had a warrant. True, they might then be facing a motion on the search authorization the granting of which would seem quite reasonable on the facts here and the Government could likely assert a good faith basis regarding the search authorization. NMCCA decision. The other part of the problem here was a claim that the DC were ineffective for not making a motion to suppress. We have consistently held that “[w]hen a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious.” United States v. Jameson, 65 M.J. 160, 163-64 (C.A.A.F. 2007) (alteration in original) (internal quotation marks omitted) (citation omitted); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001); United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997). Similarly, if deficient performance is established, to demonstrate prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Because the court resolves the first issue in favor of the Government, there's no IAC.
DAILY JOURNAL
Monday, June 17, 2024 Miscellaneous Docket - Summary Disposition No. 24-0164/AR. In re Ramsey. Notice is given that several letters presenting a variety of pro se requests were received on May 13, 17, 20, 22, and 29, 2024, and June 4, 2024, and placed on the docket this date. Petitioner's court-martial is final for all purposes, and this Court therefore lacks jurisdiction to hear his requests. We also note that the Petitioner has repeatedly burdened this Court with various filings over the last 26 years. On consideration thereof, it is ordered that said request is dismissed for lack of jurisdiction, and absent extraordinary circumstances, further filings in this Court will be viewed with disfavor. |
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