Donald A. Dripps, Eavesdropping, the Fourth Amendment and the Common Law (of Eavesdropping). Univ. San Diego Law, No. 23-043, Legal Studies Research Paper (2023). This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest? Gene Fidell at Global Military Justice Reform has a post about the Wells situation and LTG Pede's comments. First, this firing does indeed raise a question about the independence of the STCs. This was totally unnecessary. With a stroke, Secretary Christine E. Wormuth struck a blow that seems most unfair, and, worse yet, casts a cloud over the new and better prosecutorial system that many people labored long, hard and wisely to achieve in order to foster improved public confidence in the administration of justice. Her action is far more destructive of that confidence than BG Well's decade-old email ever was. Another update that mirrors some off-line discussion: When the OSTC becomes fully operational, it will face many challenges. As a former military judge, I’m convinced that the greatest challenge to this new system—a system that ostensibly promotes the appearance of independence by placing prosecutors under civilian control—will be its failure to comply with the Due Process Clause’s demand that the entire system appear independent and void of command influence. Specifically, I foresee defense counsel filing well-crafted motions that challenge a lopsided system that demands civilian control of prosecutors but leaves the entire judicial branch under the control of a TJAG who controls the assignments and futures of our military judges. While it is true that Fifth Amendment Due Process concerns have been addressed in the past, the landscape has drastically changed since those rulings. In Weiss v. US (1994), the Supreme Court rejected a due process challenge based on the fact that trial and appellate military judges had no fixed terms of office. In US v. Mitchell (1994), the CMA denied a due process attack on the Naval officer fitness-report system for appellate judges. Due process challenges to the judiciary were also addressed in US v. Graf (CMA 1992) and US v. Paulk (AFCCA 2008). However, all these cases note that under the Due Process Clause, there is a requirement that the judiciary be independent in appearance as well as in fact. The courts, especially in Mitchell, noted that Congress created or was at least aware of the structure of the judiciary and that great deference should be afforded congressional determinations related to the rights of servicemembers. On the appearance issue, the Mitchell court stated the test for whether a tribunal appears independent was whether the factors negatively impacting the appearance of judicial independence and fairness were so extraordinarily weighty to overcome the balance struck by Congress. The creation and the congressionally mandated structuring of the OSTC raise serious questions about the independence of the judiciary. OSTC was created to provide “independent” prosecutors free from undue and unlawful influence. A separate reporting chain was specifically mandated to ensure this independence. Members of the OSTC do not report to the TJAG; they are not rated by TJAG. Rather, members of the OSTC report directly to the Service Secretary. Military judges, on the other hand, are still supervised and rated by TJAG. Clearly, by removing the OSTC from TJAG’s supervision, Congress sent a message that they did not believe prosecutors could truly be independent if they reported to TJAG. How can a system that was viewed as inadequate to protect the independence of prosecutors be sufficient to protect the independence of the judiciary? If Congress believed it was necessary to move prosecutors out of the JAG chain, does their act of leaving the judiciary unchanged still get “great deference”? What would an outside observer think about the fairness of the military justice system if they knew that the independence of prosecutors was given more protection than that of judges? It seems illogical that prosecutors cannot be independent if they report to TJAG but judges somehow can be. Ira Perkins. Another update: Thomas H. French (a pseudonym) has a different perspective. First, let’s start with the general that was relieved from command. Wells lamented that his counsel should “expect no commander to be able to make objective decisions” as a result of the firing. However, he wasn’t relieved because he didn’t make an objective prosecution decision. He was fired because he violated the law. The two-star sat on an allegation of sexual assault against a colonel he had known since the 80s. Contrary to the law that required the case to be investigated, he did nothing in order to protect his friend. He didn’t take any action until Stars and Stripes asked about the case, and he lost a star for his violation of the law. Second. I know people criticize me for relying on actual data, but the raw numbers are important. Wells’ email makes it clear he is telling his counsel that no one is on the side of the accused and the system is out to get them because of political pressure and misleading data. But this is the DoD’s data, not someone “dancing by the fire of misleading statistics.” It is inconceivable that at the same time the DoD was trying to convince Congress how serious commanders took sexual assault, it was also undercounting its own prosecution data, thereby giving Congress more fuel to criticize it. In other words, the DoD has every incentive to count every case it prosecutes. As a result, the statistics on prosecution rates and convictions are hardly misleading. Instead, they conclusively show it was and is still actually highly unlikely someone accused of sexual assault would ever face trial let alone be convicted. The data shows the opposite. In FY13, the year he wrote the email, there were 4113 reports of sexual assault. Only 1187 of those reports were substantiated (27%). Of those, only 484 (40% of substantiated cases) went to court. Only 197 were convicted of a sex offense or 40% of the few cases that actually went to trial. 114 were found not guilty of all charges for a 24% acquittal rate. In total, only 4.8% of the 4113 reports resulted in a sex assault conviction during the time Wells wrote his email. As commanders controlled the process, the data shows they overwhelmingly sided with the alleged offender, thereby demonstrating the ability to ignore the pressure of Congress and “agenda-driven” groups. In other words, the facts simply do not support anything Wells said. I know many defense counsel make it sound like the deck is unfairly stacked against them, but I guarantee defense counsel in the civilian world would love to have their rate of success. And this was the high-water mark for success. Prosecutions have gone down dramatically since then as have conviction rates, while reports have doubled. In other words, the idea the system was overwhelmed by outside pressure resulting in “every allegation going to trial” is demonstrably false. In fact, as pressure intensified, commanders sent fewer and fewer cases to trial. The reality is the defense community enjoys unparalleled success in keeping cases from ever going to trial and winning the overwhelming majority of the few sex charges that do go to trial. As for Wells, he has admitted his words were wrong and distracted from the mission of the OSTC. Leaving in him that position would have made every decision not to prosecute fodder for outrage, whether warranted or not. No one is entitled to be the OSTC, and the Army is better served by having an OSTC who did not write those words. Gen Pede’s claim that Wells was proven right because the two star was allegedly cleared 10 years later doesn’t change the calculus. At the time Wells wrote the email, the two-star had been removed for failing to follow the law to the benefit of his long-time friend and subordinate. That a decade later the blame has shifted to his JAG doesn’t change what Wells knew in 2013. Update:
Firing the Army chief prosecutor- is this what independence looks like? LTG(R) Pede weighs in. He reminds us of LTG Franklin and his really bad decision (that's our opinion based on the available information) in Wilkerson. In Boyce, CAAF addressed the events surrounding LTG Franklin's decision to set aside the Wilkerson conviction and the subsequent attention to that decision and how it affected Boyce. One point of discussion was whether the military judge at trial correctly concluded that LTG Franklin was "bombproof." LTG Franklin was not bombproof--that was subsequently proven--think the Wright case and LTG Franklin's professional and personal trajectory. In Boyce, CAAF said, Substantial assistance lettersIn Nina, the defense sought a substantial assistance letter for a "nominal" sentence reduction. For various reasons, the TC decided not to submit such a letter, and the MJ, in a post-trial hearing, found no problem with that. On appeal, NMCCA was au fait with this. The issue is presented as one of alleged unlawful influence by the STC. Was the denial an independent decision of the TC, or was he directed to do that by the STC? At a post-trial Article 39(a), UCMJ, hearing, the military judge denied the motion. In his ruling, the military judge found that neither trial counsel nor Maj Alpha fully understood the rules applicable to substantial assistance letters. He also found that trial counsel’s responses to the civilian defense counsel had led the latter to believe trial counsel supported the request when, in fact, trial counsel had not made a decision to do so. Furthermore, the military judge found that trial counsel’s and Maj Alpha’s “actions and inactions in communicating with the [civilian defense counsel] exacerbated the misunderstanding in this case.” R.C.M. 1109(e)(2) states: A convening authority may reduce the sentence of an accused under this subsection only upon the recommendation of trial counsel who prosecuted the accused . . . The recommendation of trial counsel is the decision of trial counsel alone. No person may direct trial counsel to make or not make such a recommendation. NMCCA's analysis tracks the MJ and concludes that the TC was unfamiliar with SALs and was seeking advice and traing and that there was no "direction" from the STC on what to do. At the post-trial hearing the TC testified that, “At no point did I, in my capacity as trial counsel, support a substantial assistance letter in this case.”
NMCCA did note that the communications between TC, STC, and CDC "created an appearance that R.C.M. 1109(e)(2) was violated when in reality it was not." Kudos to the defense for raising the issue! Kudos to TC for asking for help. Although it appears on these facts that the better COA was to go with first instincts and not provide the letter; thus avoiding a legal issue. The Board of Directors of NIMJ is pleased to announce that Prof. Franklin D. Rosenblatt, Lt. Col. (Ret.), has been elected President for 2024. Please congratulate him below.
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Donate here. Gray v. PayneIn 2018, Gray pled guilty to allegations, including sexual assault of a child, sexual assault, sexual assault consummated by battery, assault, prejudice to good order and discipline, and failure to obey an order. The victim—his adopted stepdaughter—was between the ages of 13 and 16 when Gray sexually assaulted her. At age 16, she gave birth to Gray's biological daughter, as confirmed by DNA testing. In exchange for Gray's plea, the Army agreed to dismiss without prejudice the remaining charges, which included rape of a child, sexual abuse, and additional sexual assault and assault charges. Those charges related to another adopted stepdaughter and the victim's mother. A military judge sentenced Gray to a reduction in rank, 44 years' confinement, and a dishonorable discharge with forfeiture of all pay and allowances. His appeal to ACCA on IAC grounds failed and CAAF denied his petition.** He claimed defense counsel provided ineffective assistance by advising him to plead guilty to offenses he did not commit, to agree to an incorrect stipulation of facts, and to lie during his providence inquiry with the military judge. In a shift from his previous statements, he insisted the sex with the victim was consensual and occurred only after her sixteenth birthday. His pro se petition for habeas corpus followed. The Tenth Circuit denied his appeal of the district courts denial of his petition. "Federal courts are empowered under 28 U.S.C. § 2241 to entertain habeas petitions from military prisoners. But our review of court-martial proceedings is very limited." Santucci, 66 F.4th at 853 (internal quotation marks omitted); see also id. (describing the standard of review as "deferential" and noting that "the deference we give to military tribunals is even greater than that we owe to state courts" (internal quotation marks omitted)). Gray's inability to satisfy the second and fourth factors of Dodson caused his petition to fail. The district court found that the military courts adequately considered Gray's ineffective assistance claim. It highlighted the ACCA's efforts to supplement the record by requesting affidavits from Gray's counsel and concluded that the ACCA's opinion shows that it rejected the claim only after a complete record analysis—thus giving full and fair consideration to his claim. Gray's claim that the district court should have granted discovery also failed. Gray's discovery motion sought a transcript of a phone call between another USDB inmate and the victim, during which the victim supposedly told the inmate that she did not want to testify but her mother made her do so. The district court found that he had not shown good cause for discovery because (1) "the alleged statement by the victim does not suggest that petitioner did not commit the crime," and (2) "the facts at issue in the discovery request do not bear on the Dodson factors that preclude . . . merits review." ** We have noted the potential change to Supreme Court direct appeal based on the recent conference committee draft of the NDA 2024. See Gray v. Payne, No. 23-3079, 2023 U.S. App. LEXIS 32150, at *3 n.2 (10th Cir. Dec. 5, 2023).
Cell phone records obtained by warrant are not self-authenticating under F.R.E. 902(11). More will be required. United States v. Charbonier-Laureano, 2023 U.S. Dist. LEXIS 218249 (D.P.R. Dec. 5, 2023). The fact spousal communications were by cell phone doesn’t destroy their confidential nature. There’s still a reasonable expectation of privacy. United States v. Candelaria, 2023 U.S. Dist. LEXIS 218310 (D.N.M. Dec. 7, 2023).* Hat tip to Fourth Amendment blogAs we reach the end of the year, many are considering what nonprofits they would like to donate to. If you enjoy reading this blog, please consider donating to NIMJ. There is a monthly cost associated with keeping the website running and the domain name. Any donations of any amount would be appreciated.
Email admin@nimj.org to express interest, and a response will follow with instructions on how to give. United States v. Buhl, __ M.J. ___ (Army Ct. Crim. App. 2023)Where the government overreached in its second prosecution -- after a general court-martial acquitted the appellant of the same act charged under a different article - we grant relief by setting aside the result. Our decision renders the appellant's assigned error moot.
The court first decided that the Appellant had preserved the issue for appeal. The court decides, the issue is preserved absent a formal motion or objection. The court considers that "the defense protested at length to the trial judge (and the convening authority) about the government's repeated efforts to punish appellant for the same act[,]" preserves the issue. The court had ordered briefs on whether there was prosecutorial overreach in light of R.C.M. 906(b)(10). And, "among other things giving the government an opportunity to explain the case's trajectory." The government argued that the NJP refusal justified the referral to court-martial, which |
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