Brenner Fissell

Editor

May 2022. Retired Justice Louise Arbour's Report recommends that sexual criminal offences be removed  entirety from the jurisdiction of  military tribunals

In  her Independent External Comprehensive Review tabled in May 2022, retired Supreme Court Justice Louise Arbour recommended the removal of sexual criminal offences from the jurisdiction of military tribunals

"Recommendation Number 5. Criminal Code sexual offences should be entirely removed from the jurisdiction of the military justice system, and that they should be prosecuted in civilian criminal courts. Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity. Where the offence takes place outside of Canada, the MP may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity.  Victims will be told to contact civilian police authorities directly, and such contact to be facilitated by the MP and the CAF so far as possible."

• November 2023. Ministerial announcement giving full effect to Justice Arbour's recommendation to remove sexual criminal offences from the jurisdiction of military tribunals.

​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.

To prove the drug-related charges against petitioner Jason Smith, the State had the alleged drug evidence tested by a crime lab analyst. But by the time of trial, she was no longer employed by the crime lab—for reasons the State has never explained.* The State thus called a substitute expert who reviewed only her report and notes, and had not conducted or observed any of the tests at issue, nor conducted any quality assurance of those tests. And though Longoni acknowledged it would have taken him less than three hours to retest the evidence, the State did not have him do so prior to trial. Nonetheless, over Smith’s objections, the trial court permitted Longoni to use her notes and report, and recount from these documents the particular tests Rast performed on the evidence in Smith’s case and the results she reached, reasoning that Longoni could testify to his “independent opinion” based on Rast’s work without violating the Confrontation Clause.

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.

​INTEREST OF THE UNITED STATES This case concerns whether the Sixth Amendment’s Confrontation Clause permits the prosecution in a criminal trial to present forensic expert testimony based in part on data produced through laboratory procedures that the testifying expert did not personally perform or observe. Because the Court’s resolution of the question presented may affect federal prosecutions that depend on forensic evidence, the United States has a substantial interest in this case.

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 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.
. . .
​The holding of Inong is that “failure at trial to seek sentence relief for violations of Article 13 waives that issue on appeal absent plain error.” Inong, 58 M.J. at 465 (emphasis added). Because a court only reviews for plain error if an issue is forfeited, not waived, Inong is clearly one of those pre-Gladue cases that used the word “waiver” but actually meant “forfeiture.”

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.

United States v. Banker

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.”

On 6 February 2023, we returned the record for a hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967) (per curiam). In re Banker, Misc. Dkt. No. 2022-01, 2023 CCA LEXIS 61, at *8 (A.F. Ct. Crim. App. 6 Feb. 2023) (unpub. op.). We asked that the detailed military judge conducting the hearing make findings of fact on Denedo1 factors (3) and (4), specifically addressing:

     (1) The circumstances surrounding LG’s recantation(s) of her testimony from Petitioner’s court-martial, including when Petitioner learned that LG was recanting. (Denedo factor (3)). (2) The circumstances leading to Petitioner filing his Petition for Extraordinary Relief in the Nature of a Writ of Error Coram Nobis in January 2022, nearly 21 years after his conviction. (Denedo factor (3)). (3) The circumstances relating to LG’s 28 October 2021 affidavit statement2 that LG would have admitted her allegations were untrue to any investigator or participant to the court-martial, had she been asked directly, before Petitioner was convicted. (Denedo factor (4)).

Id. at *8–9. Understanding that in consideration of the Denedo factors, evidence relating to LG’s veracity and Petitioner’s underlying request may be revealed, we specifically did not request findings of fact on the merits of Petitioner’s request for a new trial. Because we find Petitioner has not met all six threshold requirements for the court to grant a writ of coram nobis, we do not evaluate whether a new trial would be warranted. We find a writ should not issue.

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.

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 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.

Plaintiffs are required to show good cause why their Complaint should not be dismissed for the reasons stated herein.