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CAAFlog

Supreme Court of Oregon

12/30/2022

 
Ramos is "retroactive."[1] Yes, that is what the highest court in Oregon concludes in Watkins v. Ackley, under Oregon law.

[1] See footnote 2 discussing why the term retroactive is misleading.

Presidential Pardons

12/30/2022

 
We have posted before about Presidential Pardons and military persons (mostly former) getting one.

Today, President Biden pardoned one servicemember convicted at court-martial.

What is interesting is he served on active duty after his conviction. Some of us remember when there was a Return-to-Duty program that was used and mostly worked. 
Vincente Ray Flores-Air Force-Reduction in rank to grade E-3 (as amended); forfeiture of $700 pay per month for four months; confinement for four months, suspended for participation in the Air Force Return to Duty Program (May 16, 2008) Wrongfully using 3,4 methylenedioxymethmaphetamine; underage drinking.

​Download PDF Clemency Warrant
CNN reports that
​Vincente Ray Flores was court martialed when he was around 19 for consuming ecstasy and alcohol while serving in the military. After being sentenced to four months confinement, he participated in a return-to-duty program and remains on active duty, earning various honors from the military.

Wisconsin Court of Appeals, Dist. III

12/29/2022

 
Why care about Wisconsin v. Bowers?

The Appellant, a police officer, created a DropBox account using his police department email address--duh.

He then used the DropBox to transfer documents or give access to specific folders to others--sharing.

He then put police reports of several murder investigations into the folders for others to have access to.

The police were not happy that the investigations fell into the wrong hands and soon learned about the DropBox account.

Because it was an "official account" the IT folks simply accessed the DropBox account. When the went to log in they arlready had the email address so all they had to do was click "forgot password" and whamo--they get to reset the password. Apparently Bowers wasn't using 2FA--duh.

Having gotten access, the IT folks and the prosecutor soon found what they were looking for. But, not so fast, the search was all done without a warrant. That's why Bowers is an interesting case to read about a reasonable expectation of privacy in a DropBox account where there is sharing.

The critical word saving Bower on appeal is "password."


Cheers.

And may you be having fair winds and following seas for 2023.

Conference: Military Justice Reform: The Next Twenty Years

12/27/2022

 

Military Justice Reform: The Next Twenty Years
February 24, 2023
9:00 a.m.–1:30 p.m.
Villanova University

Picture
Registration
Agenda
 
9:00–9:15 a.m.
Welcome
Video Address by Sen. Kirsten Gillibrand (NY) 
​

9:15–10:30 a.m.
Panel 1: The Jurisdictional Boundary Between Military & Civilian Criminal Justice

The first panel will feature experts discussing the desirability of continuing to maintain a separate military justice system or separate military courts.
Panelists:
  • Eugene R. Fidell, Visiting Lecturer in Law, Yale Law School; Adjunct Professor of Law, NYU Law School; and Of counsel, Feldesman Tucker Leifer Fidell LLP
  • Robert Leider, Assistant Professor of Law, Antonin Scalia Law School, George Mason University
  • Hon. Margaret A. Ryan, the J.J. Clynes Endowed Visiting Professor, Notre Dame Law School and Senior Judge on the U.S. Court of Appeals for the Armed Forces
  • Dwight Sullivan, Senior Associate Deputy General Counsel for Military Justice and Personnel Policy, Department of Defense, Office of General Counsel
Moderated by Chief Judge Emeritus Scott W. Stucky, Senior Judge of the United States Court of Appeals for the Armed Forces

10:30–11:45 a.m.
Panel 2: Unlawful Command Influence: Ethical & Legal Issues

This discussion will explore the continuing effects of unlawful command influence, which occurs when a person bearing "the mantle of command authority" uses their authority to influence the outcome of military judicial proceedings.
Panelists:
  • Major Caitlin Chiaramonte, Major in the U.S. Army and Academy Professor of Law, Department of Law at the U.S. Military Academy
  • Frank Rosenblatt, Assistant Professor of Law and Director of the Litigation and Dispute Resolution Center, Mississippi College School of Law
  • Rachel E. VanLandingham, the Irwin R. Buchalter Professor of Law, Southwestern Law School and former judge advocate in the U.S. Air Force
Moderated by the Hon. Margaret A. Ryan, the J.J. Clynes Endowed Visiting Professor, Notre Dame Law School and Senior Judge on the U.S. Court of Appeals for the Armed Forces

11:45 a.m.–12:00 p.m.
Break


12:00–1:15 p.m.
Panel 3: Military Justice in an Era of Conventional Warfare: Lessons from Ukraine

The final panel will examine the role of military justice in light of changed geopolitical circumstances.
Panelists:
  • Mario L. Barnes, Professor of Law, University of California, Irvine School of Law
  • Eugene R. Fidell, Visiting Lecturer in Law, Yale Law School; Adjunct Professor of Law, NYU Law School; and Of counsel, Feldesman Tucker Leifer Fidell LLP
  • Chris Jenks, Senior Advisor, Office of Global Criminal Justice at the Department of State and Professor of Law, SMU Dedman School of Law
Moderated by Hon. M. Tia Johnson, Judge on the U.S. Court of Appeals for the Armed Forces; Adjunct Professor of Law and former Director, National Security Law LLM Program, Georgetown Law; and Visiting Fellow, Georgetown's Center on National Security and the Law

1:15 p.m. – 1:30 p.m.
Closing

Xmas is a season of conspiracy and obfuscation

12/23/2022

 
Is there a Santa? What's in the box? Can I shake it? Who is that for? How did Santa get down the chimney, we don't have one?

In that vein, assume Mom tells Dad that Jimmy is asking about Santa and she wants to know what to tell Jimmy. Is it an overt act of a conspiracy for Dad to say that they should tell Jimmy words to the effect of, "Santa has a cloaking device which makes him invisible and yes, he'll be back this year?" They also agree to still put out the milk and cookies on schedule. Mom agreeing, they go to bed never telling Jimmy anything--and of all things, the commissary is out of milk[1] and cookies. It so happens that Dad's commanding officer gets word of this lying to a child and decides on a court-martial to make a point to Dad and all the other dads out there.

[1] For those who have been stationed at Lajes, Azores, this was at times a reality.

Dad's lawyer however has read NMCCA's decision in United States v. Gomezvillalobos. 

There, the defense moved in advance of trial to dismiss a conspiracy specification which the military judge denied, with leave to ask for reconsideration or make a 917 motion.
​At the close of the prosecution’s case, the military judge summarily denied the Defense motion brought under R.C.M. 917. The military judge reasoned: Denied. I continue to find, that there is evidence that has been presented that an agreement existed that after that agreement was formed that an overt action act was performed. That overt act was the agreement to purchase the MDMA, which was separate and apart from the original agreement, which was to distribute a controlled substance and that the agreement to purchase—essentially to front the money was not part of the original agreement. And by agreeing to front the money, that was an overt act to bring out—to accomplish the end state of the agreement; the object of the conspiracy. The issue as to whether the agreement between Appellant and 2ndLt November—that Appellant agreed to purchase drugs from 2ndLt November—was either an overt act in furtherance of a conspiracy to distribute drugs or was merely part of the agreement itself that formed the conspiracy to distribute drugs, is exactly the type of issue that would make an excellent law school final exam question.
NMCCA assigns the MJ to the naughty list.
Put simply, we find that the “overt act” charged was merely part of the overall agreement to distribute MDMA, and was not in any way independent of that agreement. Therefore, both the charge itself and the evidence adduced at trial were legally insufficient to sustain a conviction, and the military judge should have dismissed Charge I prior to trial (or at the close of the government’s case under Rule for Court-Martial 917). It follows that as the specification under Charge I fails to state an offense, the conviction for Charge I is therefore legally insufficient.
NMCCA was not Santa here, in case you were wondering--no offense meant. The appellant has served his Brig time and the remaining charges are sufficient to justify a dismissal at a sentence rehearing.

Cheers!

Off to enjoy some spiced eggnog which was NOT purchased from Cranford's Supermarket.

It must be eggnog season

12/23/2022

 
Blake Stiwel, Santa Ruthlessly Issues a Dishonorable Discharge in a New Air Force Holiday Video. Military.com, December 23, 2022.

There be consequences

12/23/2022

 
"​In 2011, Cranford, on active duty in the Army, was charged with possessing and using Spice, an unregulated intoxicant, in violation of a lawful general order. Captain Lease recommended that Cranford be tried by general court-martial and forwarded the charges. Cranford requested to be discharged in lieu of trial by court-martial, acknowledging that the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge for the charge. Cranford admitted guilt and acknowledged that he would qualify for an “other than honorable” (OTH) discharge, potentially barring him from receiving benefits. Cranford recddeived an OTH discharge. Cranford later requested VA benefits. The regional office denied that request, reasoning that Cranford’s discharge status barred him from receiving benefits. The Board of Veterans’ Appeals affirmed the denial, applying 38 C.F.R. 3.12(d)(1), to conclude that Cranford had been discharged under dishonorable conditions and was ineligible for benefits as a non-veteran under 38 U.S.C. 101(2).

The Veterans Court and Federal Circuit affirmed, rejecting arguments that the Board mischaracterized his discharge as being “in lieu of a general court-martial,” instead of a summary court-martial and that section 3.12(d)(1) did not apply to him because he had accepted an OTH discharge, not an “undesirable discharge.” An OTH discharge accepted in lieu of a general court-martial is equivalent to an undesirable discharge—despite the military service departments’ shift in terminology."

"Justia."

The summary is from Justia.com.

Air Force Court of Criminal Appeals

12/20/2022

 
United States v. Injerd is worth the read.

1. Charging decisions and word choice.
2. How calculating the actual sentence can be a bit complicated under the new rules.
3. The facts, are well, interesting.

Of Counsel and Appellant's combined 15 issues, the court focuses on the two assigned errors to find a factual insufficiency for the resisting apprehension conviction, but no error as to the sentence calculation.
​
Charging decisions?

An MJ found Appellant guilty 
​of attempting to escape custody, desertion, resisting apprehension, striking a superior noncommissioned officer, failure to obey a lawful order, unlawfully carrying a concealed handgun, assault upon a person in the execution of military law enforcement duties, fleeing apprehension, and resisting apprehension[.]
Appellant
was acquitted of one specification each of fleeing apprehension and assaulting a superior noncommissioned officer[.]

Read More

Privacy, the cloud, and investigations

12/17/2022

0 Comments

 
Wexler, Rebecca, The Global Cloud, the Criminally Accused, and Executive Versus Judicial Compulsory Process Powers (October 10, 2022). Texas Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4244186 or http://dx.doi.org/10.2139/ssrn.4244186
U.S. policymakers’ responses to the global data privacy movement are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, a wave of new global data privacy laws risks cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law enforcement to circumvent foreign data privacy laws and access cross-border evidence anyway. Yet no one is creating similar procedures for criminal defense investigators.

In the U.S. adversarial legal system, criminal defense counsel are the sole actors formally tasked with investigating evidence of innocence. While law enforcement must disclose exculpatory evidence that they happen to possess, law enforcement has no formal duty to actively seek out such evidence. As a result, selectively advantaging law enforcement investigations of guilt without creating parallel procedures for the defense means selectively suppressing evidence of innocence. This asymmetry gets privacy backwards. Privacy protections ostensibly meant to constrain government power may accomplish that goal in an absolute sense, but relatively speaking they specially empower the government as compared to the defense. They thereby undermine the criminal defense process that is itself supposed to guard against government abuse.

This Article exposes this structural, anti-defendant bias that U.S. responses to the global data privacy movement are in the midst of producing. It then uses this problem as a case study to examine the constitutionality of a more general category of laws: privacy laws that disadvantage criminal defense investigations as compared to their law enforcement counterparts. It diagnoses why constitutional challenges to these types of laws have failed in the past and proposes a novel definitional argument to strengthen these challenges moving forward. Ironically, the very CLOUD Act procedures that exclude defense investigators also hold a key to advocating on their behalf.
0 Comments

Double jeopardy

12/17/2022

1 Comment

 
Mumford, Ann C. and Alldridge, Peter W., The History of Double Jeopardy and Criminal Jurisdiction: US v. Gamble (2019) and R. v. Hutchinson (1677) (October 31, 2022). forthcoming in the Law Quarterly Review, Queen Mary Law Research Paper No. 391/2022, Available at SSRN: https://ssrn.com/abstract=4262990
​In 2019, the United States Supreme Court decided the case of US v. Gamble, reaffirming the “dual sovereignty” exception to the double jeopardy protection of the Fifth Amendment. The Court considered the absence of definite information about the English case of R. v. Hutchinson (1677) to be crucial to its decision. Hutchinson has long been cited as authority for the proposition that an acquittal in a foreign court serves as a complete bar to a prosecution in England and Wales of a UK Citizen, for the murder abroad of another UK citizen. It was argued for Gamble that this was the common law of England in 1791, the date of ratification of the US Constitution, and it was incorporated into the meaning of the Fifth Amendment, so that he, having been convicted of an offence in Alabama, could not be tried for the same offence under Federal Criminal Law. The report of Hutchinson usually cited ((1677) 3 Keb 785) is only to a bail hearing and says nothing about double jeopardy. This article sets out a fuller and more accurate account of Hutchinson than was available to the US Supreme Court. Drawing upon a range of sources, including manuscript letters, state papers and plea and controlment rolls, and a contemporary (1678) manuscript report of the decision of the judges, it identifies the actors and explains the relevant law on jurisdiction and the procedure that was adopted. The killing was in Lisbon in December 1675. In 1676 there were two unsuccessful prosecutions in Lisbon. When the alleged killer was in England the victim’s father had him arrested and petitioned the King’s Council to issue a commission under the Criminal Law Act 1541 for Hutchinson to be tried in England. The Council referred to the judges the questions whether the murder in Portugal of an Englishman by an Englishman could be tried in England (and, if so, in which court); and if they could, whether the fact that he had been tried and acquitted in Portugal served as a bar. The judges held that the murder could be in principle be tried in common law courts, where a commission was issued under the Criminal Law Act 1541, but that the Portuguese acquittals were a bar to the proceedings. Far from being ‘feeble’ (as Alito J described it) the evidence is overwhelming that Hutchinson was decided by a meeting of the judges in exactly the manner set out in a footnote in Leach’s report, first published in 1789, of Roche (1775), and that this does represent English common law as it stood in 1791. If the state of English common law at that date is to be treated as dispositive of disputes as to the meaning of expressions in the US Constitution, which is the dominant “originalist” position on its interpretation, then the US Supreme Court should have closer regard to the history. English law on the relationship between double jeopardy and overseas trials should also be reconsidered.
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