Changing of the guard

It's PCS season here in the Department and we are saying farewell to two of our professors.  LTC Sean Mangan is leaving us to be the RDC at Fort Hood, TX, and MAJ Philip Staten is leaving us to be a resident student at ILE at Fort Leavenworth, KS.  I owe both of these great officers a tremendous debt for what they have done for this Department, our students, and our Army.  I am also leaving, heading into retirement and off to teach at FIU College of Law in Miami. 

We welcome three talented and experienced criminal law judge advocates to the faculty.  LTC Matthew Calarco will be taking over as Chair.  Matt has served as an SVP and has a tremendous criminal law background.  We are also lucky to be getting MAJ Jeremy Stephens and Maj Jayson Durden (USMC) from the 61st Graduate Course.  (And yes, that means that the Department is back to having two Marines.  The Army/Navy game should be interesting this year). 

Good luck!  LTC Carpenter

Back & Forth on Senate Armed Services Committee

A day after Sen. Gillibrand's Senate Armed Services Committee subcommittee on personnel forwarded a bill stripping Commanders of decision-making for any felony [see Washington Post ], the entire SASC rejected that approach, keeping Command authority over the courts-martial process. The Gillibrand bill would have transferred charging power to "seasoned lawyers" O-6 or above with criminal trial experience. Those JAGs would be outside the victim or offender chain of command.
Sen. Levin, chair of the SASC quickly announced that the Gillibrand bill would not be adopted by the full committee.
Today, Sen. Levin put forward a bill [Post story] that required a three-star to review a two-star decision not to prosecute a sexual assault allegation. While adding a layer of bureaucracy, the Levin version of the bill appears to change very little of the current C-M process.
Sen. Gillibrand is expected to offer amendments on the Senate floor.Her measure has 27 Senate co-sponsors.
--jim clark

New law review articles

Blakemore, James Michael. Note. Counsel's control over the presentation of mitigating evidence during capital sentencing. 111 Mich. L. Rev. 1337-1360 (2013).

Pipe, Margaret-Ellen, et al. Do case outcomes change when investigative interviewing practices change? 19 Psychol. Pub. Pol'y & L. 179-190 (2013).

Boccaccini, Marcus T., et al. Do scores from risk measures matter to jurors? 19 Psychol. Pub. Pol'y & L. 259-269 (2013).

“Inconsistent Statements? WHO CARES?!?” by Elliott Wilcox

The prior inconsistent statement.  Most cross-examiners love prior inconsistent statements.  If you were to create a "top ten" list of methods for impeaching witnesses, prior inconsistent statements would rank near the top.  If you've ever caught a witness in a genuine inconsistency ("Today you testified that the light was green, but in your deposition, you testified the light was red..."), you understand how effective the impeachment can be.  But be careful.

Not all prior inconsistent statements are created equal. 

Bowersox: No Right to Possess Obscene Material in a "Shared" Barracks Room

In U.S. v. Bowersox, the CAAF held that a individual's right to possess obscene materials "in the privacy of his own home" did not extend to the accused possession of obscene materials in his shared barracks room.

CID executed a search of the the accused's barracks room with a military magistrate's authorization after the accused's roomate reported an incident that had occured in the room a week prior and which involved the accused showing the roomate the screen of the accused's computer monitor on which there were images of minors engaged in sexual activities.

UMC, Sub Rosa Agreements, and "Unnecessary Appellate Litigation": U.S. v. Schmidt (NMCCA)

There have been two short opinions from the NMCCA over the last few months regarding unreasonable multiplication of charges (UMC):  U.S. v. Sanschagrin and U.S. v. Schmidt.  They both pose the same question:  Was there UMC when the accused was charged with both receipt and possession of the same child pornography?

Bottom line for these two cases: No UMC. 

Main take-away:  Charging decisions in child pornography cases will likely hinge on what the accused did with the images/videos once he received them.

Bonus take-away:  This quote:

We caution counsel to ensure that all terms of the pretrial agreement are placed in writing and signed by the accused and counsel to avoid misunderstandings and preclude unnecessary appellate litigation. 

First, a quick review of the five-factor test set forth in U.S. v. Quiroz, the "go-to" test for UMC.

Self-Injury, Suicide, and Article 134: U.S. v. Caldwell (CAAF)

In U.S. v. Caldwell, the CAAF originally set out to answer the following question:

Whether as a matter of law a bona fide suicide attempt is punishable as self-injury under Article 134.

That question remains unanswered.  The only thing we learn from this case is that Pvt Caldwell's plea of guilty to the offense of "Self-injury without intent to avoid service" was improvident.  The court set aside Pvt Caldwell's conviction for this Article 134 charge.  While appellant's counsel got the result he asked for, this did nothing to "provide that clear guidance" that counsel requested on behalf of practitioners in this area.  Rather, this may serve as a setback in Article 134 jurisprudence.