Child Pornography

United States v. Williams.

As always, SCOTUSBlog has an excellent summary of today's (19 May 2008), Supreme Court decision in a child pornography case.
They have posted the opinion HERE.
They have posted the various briefs and lower court opinions HERE.

Crawford and Urinalysis Cases

Crime & Consequences Blog has this item:
Cross-Examining Lab Techs

The Ninth Circuit today issued an interesting, if quirky, opinion on the issue of the right to cross-examine lab technicians in United States v. Perez, No. 07-10289. The issue arose in the context of supervised release revocation, not criminal trial, and the opinion by Judge Carlos Bea cautions, "this is an unusual case with unusual facts and should not be taken out of context. We do not hold that a releasee always has a right to cross-examine the technician who tested a urine sample." In this case, though, she did have that right.

The distinct question of "Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)," will be decided next term by the Supreme Court in Melendez-Diaz v. Massachusetts, No. 07-591.

There are two pretrial requests necessary to make and two motions in a urinalysis case.
1. Put in a witness request for everyone at the Lab who had a hand in the accessioning through testing of the clients sample. There are some cases to support such a request.
2. Write a letter to the Lab CO and arrange a date and time to visit to interview everyone who had a hand in the accessioning through testing of the clients sample. Article 46, UCMJ, gives equal opportunity to obtain witnesses, and what better way than to interview those who touched the sample.
3. Litigate the witness request.
4. Litigate if necessary (as I've had to do in the case of Navy Drug Lab Jacksonville), the refusal to allow you to visit and interview the employees who touched your client's sample.

"Diverse Occasions" Pleading

C.A.A.F. has issued an opinion in United States v. Rodriguez, __ M.J. ___, No. 07-0685/AF (C.A.A.F. Apr. 23, 2008).

BLUF Lessons for counsel:
1. The defense should ask for a Bill of Particulars.
2. The defense and prosecution should craft an instruction that specifies each of the alleged "acts" separately.
3. The military judge should then instruct the members to check against each of the acts it finds proven beyond reasonable doubt.
My view is that clarity is assured by following the above practice. That's what the Rodriguez dissent seems to recommend.
At trial, the accused was found guilty of using marijuana on diverse occasions. The finding was based on three separate incidents. On appeal, the AFCCA found that the evidence was factually insufficient as to two of the incidents. Therefore, AFCCA excepted the "diverse occasions" and then amended the charge so that it reflected one use. (AFCCA reassessed the sentence, incorrectly in my view. They reduced the five months confinement to four.)
Appellant sought reversal based on United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). A C.A.A.F. (4-1) majority found Walters distinguishable. The dissent argued that Walters is dispositive.
Check out CAAFLog for more and improved pithy comments on this case.

More Crawford and Sixth Amendment

On 22 April 2008, the United States Supreme Court heard oral argument in Giles v. California.
The Question Presented:

In Crawford v. Washington, 541 U.S. 36, 62 (2004), this Court recognized
that the forfeiture by wrongdoing rule “extinguishes confrontation claims on
essentially equitable grounds.” The question presented by this case is:
Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation
Clause claims upon a mere showing that the defendant has caused the
unavailability of a witness, as some courts have held, or must there also be an
additional showing that the defendant's actions were undertaken for the purpose
of preventing the witness from testifying, as other courts have held?

SCOTUSwiki has the briefs, opinions below, and associated documents HERE.

Remedy for Post-Trial Delay

The Navy-Marine Corps Court of Criminal Appeals has begun issuing a series of opinions addressing post-trial delay. The court is granting relief in a number of cases. In each case where there is a denial of relief the appellant's position could be enhanced. It is the trial defense counsel who is the one most likely and able to assist the appellant get some relief. The two weakest points in the court denials relate to a failure to seek a "speedy post-trial review" and prejudice. Both points can be established by trial defense counsel and the appellant with proper advice at the time of trial. Here is my protocol that I follow in cases, especially not guilty plea cases, to try and set the client up for post-trial delay relief.

1. After trial -- sit down with the client and explain the post-trial process specific to the case. This is critical because the boilerplate post-trial advice given by the military defense and military judge is just that, generic non-specific advice.
a. Discuss with the client the specific issues of clemency and parole and how they can enhance their chance at parole. This should be an add-on to the advice about R.C.M. 1106-06.
b. Discuss with the client the "post-trial diary." Like the pre-trial diary, the post-trial diary is a chronological log of events that may help get clemency, parole, or appellate relief.
c. Advise the client to keep a specific record of any time after going on appellate leave they feel prejudiced by not having a DD214. The client should immediately bring this to the attention of the trial defense counsel Remember, under United States v. Palenius, 2 M.J. 86 (C.M.A. 1977), you remain trial defense counsel until you are released by the client, released by an appellate court, or replaced by the assigned appellate counsel. This means that for the one, two, or three years before the case is docketed you are still the counsel, despite the PCS or the move to be a prosecutor, etc. This is a point I believe is missed, but is required by Palenius. I would encourage reviewing Palenius as the "bible" of post-trial representational procedure and responsibility.
d. I'm to the point where I think it's advisable to give the client some sort of "advice" letter on the post-trial delay issue.
e. If the client does encounter "prejudice" post-trial, you and the client will have to take aggressive steps to document through letters and affidavits. It's easier to do that when the problem happens, rather than later.

2. On day 90 or 120 (I don't have a preference here) after trial when you haven't received a record of trial you should file a Motion for a Post-Trial Article 39(a), UCMJ, session. There is no question that the military judge retains control of a case where the record of trial is yet to be authenticated, and that the military judge can hold such a session under R.C.M. 1102.
a. The purpose is to ask for post-trial release from post-trial confinement pending appeal, additional credit for post-trial confinement due to delay, and a court ordered date certain to have the record of trial delivered to the military judge.
b. Isn't that a waste of time you ask? In every case I have done this the military judge has given the prosecution a date certain, usually 30 days. In one case the military judge directed production of the record of trial within 30 days AND GAVE SIX MONTHS CREDIT against an eight year sentence to confinement based on the delay. Plus, you specifically address the Navy-Marine courts findings that the appellant ought to have demanded speedy review.
3. If you are not getting any response after four months, then it is time to file a petition for a writ of habeas corpus and mandamus.
But this takes work? Yes it does, but after the first one it becomes much easier. Change the headings, update the law, and it's done.

4. I understand there are cases (usually the married client) where the client is happy with the delay. The client's family continues to get the all important medical benefits. That's a judgment call and should be discussed with the client after trial.

4. The current Navy-Marine court is trying to find a middle ground, following my protocol can help them and ultimately the client.

Death Penalty for Rape of a Child

The U.S. Supreme Court heard oral argument today in Kennedy v. Louisiana, No. 07-343.
The transcript posted HERE.
SCOTUSwiki has posted the opinions below, the petition, and the briefs HERE.
OYEZ has the opinion in Coker v. Georgia and oral argument HERE.

The Supreme Court has previously held in Coker v. Georgia, 433 U.S. 584 (1977), that the death penalty is cruel and unusual punishment for the rape of an adult where the rapist did not also cause the death of the victim. Louisiana, and several other states have passed legislation imposing the death penalty for the rape of a child under 13. Louisiana has two persons sentenced under this law on death row, one of them being Kennedy. Military practice so far has been not to seek the death penalty for rape unaccompanied by a death, basically adopting Coker as a matter of policy.

Article 120 authorizes a death penalty for rape. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Supreme Court held that executing a defendant for rape of an adult female would violate the Eighth Amendment. We intimated in Matthews that this same principle would apply to trials by courts-martial, "at least, where there is no purpose unique to the military mission that would be served by allowing the death penalty for this offense." 16 MJ at 380.
United States v. Curtis, 32 M.J. 252, 266 (C.M.A. 1991).

False Official Statements

C.A.A.F. has issued an opinion in United States v. Day.
The issue relates to whether or not statements to the base medical emergency personnel and to an off-base 911 operator are "official" for Article 107, UCMJ, purposes.
Yes as to base officials, no as to off-base. The Court reasserts an expansive reading of what's punishable under Article 107. As far as the court is concerned, just about anything can be an official statement, they will know it when they see it.

Article 107, UCMJ, and 18 U.S.C. § 1001 are not perfectly congruent. “In fact, this Court has recognized that the scope of Article 107 is more expansive than its civilian counterpart, because ‘the primary purpose of military criminal law —- to maintain morale, good order, and discipline -- has no parallel in civilian criminal law.’” United States v. Teffeau, 58 M.J. 62, 68-69 (C.A.A.F. 2003).