Caution -- Don't Get Ecstatic Yet!

The Washington Post reports legitimate research into the use of MDMA (the real ecstasy) for the treatment of Post-Traumatic Stress Disorder.
The Peace Drug: Post-traumatic stress disorder had destroyed Donna Kilgore's life. Then experimental therapy with MDMA, a psychedelic drug better known as ecstasy, showed her a way out. Was it a fluke -- or the future?

Hot Topic: Post Traumatic Stress Disorder

Post Traumatic Stress Disorder (PTSD) is caused by traumatic events that are outside the range of usual human experiences. Mostly associated with military combat, violent personal assault, or terrorist attacks; PTSD can also be caused by natural disasters such as the devastation from Hurricane Katrina. The essential feature of PTSD is the development of characteristic symptoms that may include: intrusive thoughts and flashbacks, anger, isolation, emotional numbing, anxiety, depression, substance abuse, survivor guilt, hyper-alertness, suicidal feelings and thoughts, alienation, negative self-image, memory impairment, problems with intimate relationships and emotional distance from family and others.

Here NTIS presents the latest in government research on Post Traumatic Stress Disorder.

The research does NOT mean that the use of MDMA outside of the research project is legal. MDMA remains a controlled substance. The use of MDMA is still prohibited to all military members. Even if MDMA is later approved as a treatment to PTSD, it's likely that the use and possession will be controlled through a need for a prescription.

Trial Practice Tip: Experts

The Army Court of Criminal Appeals has decided United States v. Livengood. He may of been living good prior to his misconduct, but now he's living good as a guest of a military confinement facility. This issue in his case relates to "confusional arousal disorder." He was convicted of molesting his biologically, teenage, mentally challenged daughter. The military judge excluded expert testimony about "a state in which a person, stimulated during sleep, is not awakened but becomes active, while having no control over their actions. The accused would be able to complete sex acts while having no general intent." Op. 2, no.2. The court found no error, but even if there was error, it was non-prejudicial. Perhaps his "Ever-Changing Explanations," in pre-trial statements helped along with other testimony (his wife was also subject to "Ever-Changing Explanations."

The military judge conducted a Houser review of the expert testimony. United States v. Houser, 36 M.J. 392 (C.M.A. 1993). (Cynics note -- this was the defense proffering the testimony, not the prosecution. Therefore the evidence was examined using Rule #1 (if it helps the defense or hurts the government it's not admissible).) Check out this article if you wonder whether the defense gets a fair shake with experts.
See, Risinger, Michael D., Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock? 64 Albany L. Rev. 99 (2000).
Overall though the case is well worth the read as a reminder on how to challenge government "expert" testimony.

Trial Practice Tip: Can you unring the bell?

---- probably not.

In every case involving improper [argument] [testimony] , we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one 'cannot unring a bell'; 'after the thrust of the saber it is difficult to say forget the wound'; and finally, 'if you throw a skunk into the jury box, you can't instruct the jury not to smell it'. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962).

We've all heard and used those expressions when the trial counsel argues that the military judge only has to give a curative or limiting instruction to deal with some inappropriate evidence or argument trial counsel introduced into the trial. And the military judge might say, "how do you know the members won't follow the instruction." Of course the answer is you don't know, no-one knows.

The law -- the appellate law -- assumes that the members followed the instruction and purged the offending matter from their minds and their deliberations. Sometimes the appellate court -- without any evidence -- will say there's nothing to indicate the members didn't follow the military judge's instructions. Huh, you might say? Huh, in light of the proscription on the type of interview you can have with members post-trial and the type of issues that can cause a legal issue. And is a member going to admit that they didn't follow the military judge's instruction.

Checkout, Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”); Diamond, Shari Seidman, and Neil Vidmar. “Jury Room Ruminations on Forbidden Topics.” Virginia Law Review 87 (2001): 1857.

Motions in-limine are a good start if you have advance warning (or suspicion) that inadmissible evidence may come in. NCIS, CID, OSI, all to frequently violate the proscription against human lie detector testimony. File a motion in-limine to have them instructed in advance of testimony. Having done that, you have a better claim for an R.C.M. 915 motion (you still won't win it, but at least you've set up a better record).

Trial Practice Note: Stipulations of Fact

The district court ruling in Watada v. Head, is worthy of a trial practitioner's reading as it relates to Stipulations of Fact, confessional stipulations, and mistrials. The difference between a stipulation of fact for a guilty plea, and a confessional stipulation where there is a not guilty plea doesn't come up very often. Watada illustrates one scenario where the stipulation of fact was intended to be used on the merits of a not guilty plea, not as a basis to support providency of a guilty plea. Depending on the nature of the stipulation it may be entirely proper for the military judge to conduct a Bertelson inquiry (3 M.J. 314 (C.M.A. 1977); and see also United States v. Hagy, 12 M.J. 739, 746 (A.F.C.M.R. 1981); United States v. Kepple, 27 M.J. 773 (A.F.C.M.R. 1988) ). Another scenario possibly leading to a Bertelson issue would be when there is a pretrial agreement requiring the accused to plead guilty to a lesser included offense, there is a required stipulation of fact, and the prosecution is proceeding on the greater offense and the agreement allows use of the stipulation.

The prosecution and defense in Watada seem to have made a conscientious and proper effort to craft a stipulation of fact to avoid the prosecution having to bring a boatload of witnesses and documents to trial. In effect they were attempting some judicial economy while allowing the parties and the members to focus on the real issue. The military judge interjected the concern about the use of the stipulation and the prosecution ultimately requested a mistrial. As the district court points out, neither the military judge nor the prosecution considered alternatives to the drastic remedy of a mistrial.

So, careful drafting, focus on the actual use and effect of the stipulation, and (usually the prosecution) consider alternatives to a mistrial.

The district court in Watada issued a preliminary injunction. The case still has to be litigated on the merits, so there's not absolute guarantee Watada will win. But recollect that when granting the injunction the court has to consider -- and has amply documented it's consideration in Watada -- of whether the petitioner is likely to succeed.

Trial Practice Note: Instructions.

The Army has released an opinion in United States v. Gutierrez.

The trial issues from Gutierrez relate to the giving of instructions. In Gutierrez, the defense case was based on mistake of fact to rape. The military judge instructed on LIO's relating to assault. The military judge decided not to give an instruction on mistake as to the LIO's. ACCA then read the trial defense counsel's comments to be a "waiver" of an instruction. CAAF reversed. ACCA on "further review" specified IAC as to defense counsel's failure to press for the mistake instruction on the LIOs. ACCA then found defense counsel ineffective. It appears that the defense counsel's affidavit was the primary evidence. ACCA found no reasonable strategy when asking for an instruction on the greater offense but apparently "waiving" the instruction as to a LIO. Here are the points.

1. ACCA reminds military judges they have a sua sponte duty to instruct on affirmative defenses.

As a military judge has a sua sponte duty to instruct panel members on affirmative defenses reasonably raised by the evidence, United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002), we found that the military judge erred in failing sua sponte to give an instruction on the affirmative defense of mistake of fact as to consent for the lesser-included offense of assault consummated by a battery. United States v. Gutierrez, 63 M.J. 568 (Army Ct. Crim. App. 2006).

2. ACCA reminds trial defense counsel to be clear on whether or not they are waiving instructions, and military judges to make clear on the record whether the defense is affirmatively waiving an instruction. There are times when defense counsel, as a strategy, will waive instructions. See e.g., United States v. Duncan, 36 M.J. 668 (NMCMR 1991). For example, a desire for an all or nothing case presented to members. So if you are going to waive an instruction (or not ask for it) you need to be absolutely sure the waiver fits within the defense theory of the case.

3. If the MJ raises a question of "does anyone think I should instruct on x, y or z?" That's a signal. Take some time, ask for a brief recess if necessary, but whatever you do, don't make a "snap decision." Gutierrez, Slip. Op. at page 8.

Trial Practice Note: Should you trust DOD/Military Labs

Not always.

You'll remember the Brooks Air Force Drug Lab, August 2002, flawed analysis of a known quality assurance sample. Although the facts of this flaw are now successfully suppressed in drug urinalysis cases - despite continued reference to the "gold standard," i.e. perfect testing process, in trial, in briefings, and in military media.

You'll remember that USACIL successfully covered up a rogue DNA examiner's errors - and then put him back to doing the same testing. And he did it again, and then they tell people.

WELCOME TO DCFL (the DEFENSE COMPUTER FORENSICS LABORATORY).

They -- well, feel free to read the LETTER.

You need an expert in computer cases, just like you need one in drug cases and other forensics related cases.