On November 20, 2023, the Defence Minister (Canada), the Honorable Bill Blair, announced to CBC National News that the National Defence Act, in particular section 70, will soon be amended – "hopefully by the end of 2023", he added -- to transfer jurisdiction for the investigation and prosecution of “sexual assaults” [rape] from the military to civilian courts.
Courtesy of GMJR.
The change follows recommendations in the Arbor Report.
May 2022. Retired Justice Louise Arbour's Report recommends that sexual criminal offences be removed entirety from the jurisdiction of military tribunals
Smith v. Arizona--the briefs are in, including several amici who are confrontation law heavyweights. One of the amici is the U.S. SG in support of neither party suggesting a remand. To be argued 10 January 2024.
QUESTION PRESENTED Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.
* It would be interesting to know if she was let go because of performance issues or misconduct related to her practice. Would this not affect the reliability of any data or reports prepared by the substitute expert? So there's a discovery issue lurking potentially. Counsel are aware of the occasional missive about drug lab employee misconduct or other errors in testing. With the drug pop cases effectively a strict liability crime with a presumption of guilt, is there an argument that the MRE should be changed to require, like confessions, some modicum of independent corroboration in drug pop cases?
The SG states the QP as
Whether the Confrontation Clause of the Sixth Amendment is satisfied when an expert witness provides opinion testimony that is based in part on data from laboratory tests performed in whole or in part by someone who is not testifying.
Some may be familiar with the Navy joke that the lashings will continue until morale improves.
Fadley Faisal, Appellate court upholds Court Martial decision in landmark hearing. Borneo Bulletin, 19 November 2023.
In the first-of-its-kind hearing on Thursday, the Court of Appeal upheld the Royal Brunei Armed Forces (RBAF) Court Martial’s decision in handing a 20-year sentence with eight whippings to a uniformed personnel on multiple charges of sodomy and sexual assault of numerous male army recruits.
The accused, the appellant, was a captain at the time of his offenses and trial. Some initial research suggests that caning is an authorized punishment in Brunei, going back to its time as a British protectorate.
In James, the court finds no IAC for not asking for credit for pretrial confinement conditions, the issue was waived, and no relief is warranted for post-trial delay.
The Government asserts that the United States Court of Appeals for the Armed Forces (CAAF) in United States v. Inong, 58 M.J. 460, 465 (C.A.A.F. 2003), established a bright line rule that failure to raise claims of illegal pretrial punishment at trial results in waiver by operation of law. We disagree.
However, the court found an affirmative waiver because the appellant agreed to waive all waivable motions in his PTA. Relief for pretrial punishment or conditions is waivable. There was no IAC because the DC reasoned that seeking such relief might cause the government to withdraw from a favorable PTA. The appellant agreed.
But after discussing the matter with colleagues and conducting legal research, the defense team, including Appellant, decided the best course of action was to raise pretrial confinement conditions as mitigation evidence rather than a separate motion that could be deemed a breach of the agreement to waive all waivable motions. DC went on to explain: It was absolutely a considered decision of the trial defense team to present these matters in sentencing rather than as a motion for relief due to unlawful pretrial punishment because the Appellant made a decision [subsequent to his placement in pretrial confinement] that he wanted to persist as a party to the plea agreement he had negotiated under the previously negotiated terms, to include the motions waiver provision.
Editor comment sparked by an observer friend.
The ALNAV uses the term "military defense counsel." And notation that this ALNAV controls. However, the Manual of the Judge Advocate General (JAGMAN) has different language. (The JAGMAN is similar to AR 27-1 or AFI 51-201.)
Para. 0109.a. and other paragraphs says
"There is no right for an accused to consult with a lawyer before nonjudicial punishment; however, commanding officers are encouraged to permit an accused to so consult subject to the immediate availability of counsel, the delay involved, and operational commitments or military exigencies." (The effect of the Sailor not being allowed to consult with a lawyer is that the record cannot be used in aggravation at a court-martial.)
"If the accused elects to consult a lawyer, such lawyer may be a military lawyer, or a civilian lawyer obtained by the accused at his or her personal expense."
"Such advice to an accused from a military lawyer should be limited to an explanation of the legal ramifications involved in the right to refuse nonjudicial punishment. These legal ramifications are limited to areas such as: the accused's substantive and procedural rights at a court-martial as opposed to nonjudicial punishment; the respective punishment limitations; the potential uses of courts-martial convictions and nonjudicial punishment records at any subsequent trial by court-martial, or other judicial or administrative proceeding; and that acceptance of nonjudicial punishment may not preclude conviction for the same offense in other civilian jurisdictions. Providing these technical explanations regarding basic principles of military law, while confidential, do not, per se, establish an attorney client relationship, nor do they constitute an assignment of such a military lawyer as the individual's defense counsel or personal representative for purposes of nonjudicial punishment. Military lawyers making such explanations will guard against the establishment of an attorney-client relationship unless detailed by proper authority to serve as defense counsel or personal representative of the accused."
The prescribed rights advice form has the following.
"In order to help you decide whether or not to refuse nonjudicial punishment or to exercise any of the rights explained above should you decide to accept nonjudicial punishment, you may obtain the advice of a lawyer before any decision. If you wish to talk to a lawyer, a military lawyer will be made available to you, either in person or by telephone, free of charge, or you may obtain advice from a civilian lawyer at your own expense."
Interesting. Does the Sailor assigned to USS UNDERWAY that is in drydock at Norfolk Naval Shipyard, Newport News, VA, have the same "right" as a Sailor performing shore duty at NNSY?
Does the ALNAV intentionally or unintentionally mean that a person "embarked or assigned," who now can refuse NJP under certain circumances, may only consult with a military lawyer or military defense counsel?
And for our Coastie friends, will the Secretary DHS take this new question up?
Updated: No. 24-0033/AF. Gregory P. Banker, Petitioner v. United States, Respondent. CCA 2022-01. Notice is given that a motion for enlargement of time to file a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on November 9, 2023, and placed on the docket November 9, 2023. On consideration thereof, it is ordered that the motion is granted to December 14, 2023.
United States v. Banker
Remember United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004) and United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011)? Cossio-like, Banker is back before the appellate courts. For those considering coram nobis, the AFCCA has provided a decent outline to get you started.
Petitioner requested this court issue “a writ of error coram nobis setting aside his 9 February 2001 conviction, as it was based upon false testimony.”
Diaz has been granted cert. See here for a summary of the case at SCOTUSblog.
Diaz v. United States, 23-14
Issue: Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters.
(relisted after the Nov. 3 conference)
Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, and May 11 conferences; relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27 and Nov. 3 conferences)
Glossip v. Oklahoma, 22-7466
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27 and Nov. 3 conferences)
Plaintiffs bring this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiffs are incarcerated at the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas ("USDB"). Plaintiffs complain about limitations on receiving materials deemed obscene, grooming standards, and the granting of abatement days for completing certain treatment groups at the USDB. Plaintiffs allege that they have been deprived of their rights under the First, Fifth, and Fourteenth Amendments.
One of the books at issue is The Valens Legacy. The book and others by the same author are available at Good Reads, with a note at the bottom of the asbtract.
WARNING: The Valens Legacy contains explicit sexuality, nudity, violence, bad language, attempted murder, actual murder, self-defense, proactive self-defense, destruction of private property, vandalism, breaking and entering, tantric magic, polyamory, mayhem, gratuitous sex and violence, littering, breaking speed limits, a used car dealer, one Plymouth hemi, and some poor guy who just wants to earn a paycheck as a cashier.
The complaint as to abatement days is simple recited as
The Complaint alleges that the USDB has implemented a new policy on abatement days awarded for the completion of approved programs. According to the Complaint, the USDB is applying the policy only to newly arrived inmates. Plaintiff Ewan requested that the Commandant reconsider this position as it is not fair to current inmates who completed the same programs. Ewan's request was denied.
After rehearsing a number of procedural errors the court
Plaintiffs are required to show good cause why their Complaint should not be dismissed for the reasons stated herein.
We are trying to research the clemency and parole process as it compares with civilian jurisdictions. Any readers who are former CPB members, and who are interested in discussing their experience, please email us.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook