Whether, and to what extent, the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary.

The petition begins with,

When a criminal defendant seeks potentially exculpatory information that is protected by the psychotherapist-patient privilege, a court must decide which prevails: the defendant’s interest in accessing that material, or the government’s policy interest embodied in the privilege. Both sides of the ledger are important: On the defendant’s side, his constitutional rights to due process, compulsory process, and confrontation may all be compromised if he is denied access to the information. On the government’s side, disclosing otherwise privileged information could compromise important public objectives, including “the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Jaffee v. Redmond, 518 U.S. 1, 11 (1996). Where the evidence is in the hands of the State and the privilege law at issue does not “absolute[ly] . . . shield [the] files from all eyes,” this Court has held that a criminal defendant’s constitutional right to due process trumps a privilege. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).

How many times have we seen the MCIO investigators have some access, but the trial counsel refuses to provide citing Mil. R. Evid. 513?

Let’s see if the Supremes grant. Follow the case here at SCOTUSblog.

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges

Retired Army Maj. Gen. James Grazioplene on Wednesday admitted to sexually abusing his then-teenage daughter in the 1980s, in exchange for a suspension of his sentence. His daughter, Jennifer Elmore, turned 49 on Wednesday. Grazioplene pleaded guilty in a Prince William County, Virginia, circuit court to aggravated sexual battery. He has been in jail for approximately 18 months. He was expected to be released on Wednesday and will serve 20 years of probation, according to Elmore’s lawyer, Ryan Guilds.”

The case will be familiar to military justice practitioners.

Retired Maj. Gen. James Grazioplene, 69, faced an Article 32 hearing on charges he had repeatedly raped his daughter at various military postings in the United States and Germany in the 1980s. The military charges were dropped due to statute of limitations issues within the Uniform Code of Military Justice.

His case was affected by CAAF’s decision in Mangahas and others. The U. S. Supreme Ct did not have a chance to rule on CAAF’s Mangahas decision, but the military statute of limitations is pending before the Supreme Court in two cases. Here is a link to SCOTUSBlog on United States v. Briggs, consolidated with United States v. Collins. In the process it is expected that the Supreme Court will take on the issue of whether Coker v. Georgia really does apply to the military. SCOTUSBlog opines that “it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.” I wonder if the Supreme Court will follow the doctrine of Constitutional avoidance–the usual practice of avoiding constitutional issues if the case can be resolved on a non-constitutional ground?

The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

AMERICAN MILITARY JUSTICE: RETAINING THE COMMANDER’S AUTHORITY TO ENFORCE DISCIPLINE AND JUSTICE.

[https://www.court-martial-ucmj.com/white-paper-on-military-justice-reforms-2020-w-app/]

In summary, [they] believe that:

• Commanders play a critical and necessary role in the American military justice system; • Transferring prosecutorial discretion from commanders to judge advocates will undermine commanders’ authority to maintain good order and discipline; • Transferring the decision to prosecute and refer charges to a court-martial will create unintended consequences; • Changing the American military justice system to emulate the systems of other countries is not warranted or advisable. Comparison of sexual assault prosecution rates of the United States military with four United States allies in 2013 (see Appendix) and with three allies more recently do not support adopting their systems of removal of command responsibility for prosecuting serious sex crimes; • The Proposed Amendments Will Adversely Affect the Delicate Balance Between Justice and Discipline; • Recent Studies of Command Decisions to Prosecute Sexual Assaults Demonstrate that the Current System is Working; • Congress Should Await Implementation of the Reforms Outlined in the Military Justice Act of 2016 for Oversight and Accountability; and • Congress should reaffirm the role of the commander to enforce good order and discipline.

Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).

Should the TJAGs also send a “letter to self?”

https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf,

just decided by the U. S. Court of Appeals for the Armed Forces.

In Voorhees, the trial counsel (prosecutor) tried to establish his bona fides with the court members during voir dire. Which lead the Court to say:

Despite his self-described expertise, trial counsel’s findings and rebuttal arguments were riddled with egregious misconduct, much of which amounted to clear, obvious error. We are most concerned with trial counsel’s: (1) personal attacks on defense counsel; (2) personal attacks on Appellant; and (3) expressing personal opinions, bolstering, and vouching. We address each in turn (which the Court did). First, trial counsel accused defense counsel of “misplaced lying,” and made the defense theory of the case seem fantastical, saying “defense counsel’s imagination is not reasonable doubt.” Both statements amount to clear, obvious error.

A reasonable observer must ask, why did the prosecutor not know that and refrain from such conduct. (Note that it’s unusual for the appellate courts to name the trial counsel.) Later the Court quotes some of the language used during argument concluding, again, that “These statements are all clear and obvious error.”

Regardless, the Court said, “Although trial counsel’s misconduct amounted to grievous error,” they were not prejudicial because the evidence against the accused was overwhelming, the defense counsel didn’t object, and the trial judge did not sua sponte object and caution the trial counsel. So, the conviction was affirmed. The Court observed that,

Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel. . . . Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial. As we admonished in Andrews, “Military judges are neither mere figurehead[s] nor are they umpire[s] in a contest between the Government and accused;” they too have a “sua sponte duty to [e]nsure that an accused receives a fair trial.” 77 M.J. at 403–04 (alterations in original) (internal quotation marks omitted) (citations omitted). The military judge in Appellant’s case simply allowed trial counsel to ramble on with his improper argument. Similarly, although defense counsel’s failure to object appears to have been a conscious and tactical choice in the instant case, we remind all defense counsel they “owe[s] a duty to the[ir] client[s] to object to improper arguments early and often.” Id. at 404. . . . This case aside, the consistent flow of improper argument appeals to our Court suggests that those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct. As superior officers, these individuals should remind their subordinate judge advocates of the importance of the prosecutor’s role within the military justice system and should counsel them to “seek justice, not merely to convict.” . . . Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel.

On appeal to AFCCA that court set aside the finding of guilty to sexual assault, leaving an Article 133 conviction in place. The court remanded for a new sentencing hearing, after which the case went back to AFCCA and then to CAAF.

On initial appeal.

https://afcca.law.af.mil/afcca_opinions/cp/voorhees-38836.u_corrected_copy.pdf

After the sentence rehearing.

https://afcca.law.af.mil/content/afcca_opinions/cp/voorhees_-_38836reh.u.pdf

In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.”

Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.

Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk. OK, where are the bar receipts? No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available. Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts. The receipt tells you a number of things: time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?) Or, how about the video from the base entry point when the CW walks or drives or is driven on base? Is it possible the video helps show how unintoxicated the CW was or wasn’t? CCTV? Remember, the MCIO doesn’t usually care about this stuff.

“To many this would seem a clear-cut case of sexual assault [especially if ordered to believe the victim]. However, a case is not determined [except in the military] on what one believes, but by what the investigation shows and that can be proved [lordy, lordy].”

Hello!

So what really happened that evening? In a case like this of “he said, she said,” investigators look to the forensic evidence to help them piece together what may have actually happened. The investigation and exploration of the totality of the evidence collected are critical to unravelling the allegations and discerning whether charges can be filed. Therefore, when DNA is not available or not probative, other forensic evidence can help establish the facts. The most important take-away is that a case should be developed using the totality of the evidence. (Cleaned up.)

W-T-R: Sexual Assault Cases: Exploring the Importance of Non-DNA Forensic Evidence. National Institute of Justice Journal, Issue No. 279.

Task Force Purple Harbor, a joint NCIS-led Task Force, stood up immediately following Marines United during March 2017, has identified six special courts-martial which have adjudicated cases related to the actual, attempted, or threatened nonconsensual distribution of intimate images. Of note, three of the cases summarized below occurred prior to the substantial measures undertaken by the Commandant of the Marine Corps since March 2017. These cases encompass different types of misconduct addressed under or through the UCMJ and are summarized below. Each case is evaluated independently, based on the unique facts and circumstances of that individual case.

13 March 2018, Special Courts-Martial Cases Involving Intimate Damages to Date.

From the petition of Appellant.

Prosecutors routinely request, and district courts routinely give, instructions allowing the jury to find a crime’s required scienter through “deliberate ignorance”—that the defendant purposely contrived to avoid learning that his conduct was criminal. Appellate courts recognize that these instructions risk misleading the jury into thinking they should convict for behavior that is merely reckless or even negligent. These same courts frequently hold that deliberate-ignorance instructions should not have been given. But there is a deep, threeway split regarding the circumstances under which such improper submissions merit reversal. Two circuits hold that an improper submission is harmless per se. Six circuits hold that it is harmless if there is “sufficient” or “substantial” evidence that the defendant had actual knowledge of criminal activity. And four circuits hold that it is harmless only if there is “overwhelming” evidence of actual knowledge. The circuits likewise differ on whether the charge’s phrasing matters in determining the likelihood that an erroneous deliberate-ignorance instruction caused harm.

United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.

Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”

A defense expert consultant confirmed this disclosure. So the defense moved to compel a physical extraction of the CW’s “Samsung Galaxy S-IV” cell phone. “The defense asserted that the report derived from the logical extraction did not include deleted data, hidden data, or mobile applications data.”

The NCIS expert explained that he could not perform a physical extraction because a “Galaxy S-IV” was not a “rooted” phone. The evidence provided in support of the defense expert conclusion that a physical extraction could be performed was a “screenshot,” of an apparently earlier version of the phone, a “Galaxy SIII, Alfa,” and the screenshot indicated it was a “rooted” phone. Based upon this limited and contradictory evidence, we agree with the military judge that the appellant failed to sustain his burden of persuasion. Furthermore, there was no evidence submitted at trial or to date that in February 2015, when NCIS had control of PI’s cell phone, the technology existed to conduct a physical extraction of a Galaxy S-IV cell phone.

Cellebrite can now unlock iPhone 6 and 6+, also extract data from array of popular apps, according to cyberscoop.com.

What Happens When You Press that Button? — according to Cellbrite.

My client and his alleged co-conspirator had charges preferred in January 2016 and in April they were arraigned at a general court-martial. We then experienced many delays because of funding issues until trial in February 2018. Over the months, the six others had their allegations resolved at summary court-martial, nonjudicial punishment, and administrative separation—all for offenses collateral to the alleged sexual assaults.

As our investigation and preparation progressed we were able to develop what we believed to be a motive to fabricate a false allegation of sexual assault, for what psychologists call secondary gain (to police and lawyers that’s called motive). The complaining witness was in trouble: she’d lied to command personnel about where she was going that day, and like the eight accused’s she violated various rules of alcohol and fraternization–she and others were about to undergo a surprise breathalyzer that night. Her answer was to claim sexual assault for what we believed to be consensual group sex.

Text messages, photos, and video often plays a part in military sexual assault cases. Therefore, it’s important to get all that evidence as soon as possible. Keep in mind that law enforcement and prosecutors often cherry-pick their way through this potential evidence for what helps a prosecution. In our investigation, we found documentary evidence, independent witnesses, a few texts not gathered by law enforcement, and video of the relevant times at the hotel (I give law enforcement credit here that they got all the hotel video available). We found video and a couple of text messages that helped support our theory. While not a smoking gun, we were able to find independent evidence to circumstantially show the complaining witness was flirting with the client prior to the alleged events and video of her checking out of the hotel shortly after the alleged events. Using the checking out video-clips we believed we had a good argument to show she was not drunk and was friendly with the alleged co-conspirator, and that she was not in any distress from an assault or being drunk.

As the six other cases were being processed those accused became available as potential witnesses for us—and they were able to fill in some gaps and also give further evidence to support our theory of consensual sexual activity followed by a false complaint.

Bottom line, the client ended up pleading guilty to violating the no alcohol order, lying to investigators (when he denied drinking and having sex), having a ménage à trois (sexual conduct by having sex in the presence of another), and an assault and battery.

The client was sentenced to a bad conduct discharge and four months confinement—42 months after the alleged offenses and through most of his enlistment.

The alleged co-conspirator will be tried soon, and it is anticipated he will be found guilty of the orders offense and obstructing justice only.

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

Army CID made a number of amateurish mistakes in identifying the accused in a military sexual assault case and then failing to secure or gather supporting evidence that may have helped the prosecution. (One of the problems in MCIO investigations these days is that they are conducted as “victim-centric” “investigations,” not as criminal investigations. That means a contrived or command directed confirmation bias which misses or loses evidence for the defense and the prosecution.) This investigation is another example of why neither trial nor defense should take CID (or other LE) investigations at, dare I say it, face value.

The military judge found that SPC Al-S showed the CID agent appellant’s photograph from SPC Al-S’s phone.14 The CID agent then showed the single photograph to SPC AM who immediately identified appellant as the person who assaulted her at the dance party. Prior to showing SPC AM the photograph, the CID agent did not arrange a photo array or present SPC AM any other options but to say that the photograph was or was not the person who assaulted her. This court also notes that the government did not present evidence or any exigent circumstances to explain the CID agent’s decision that it was necessary to show SPC AM the single photograph. The military judge concluded that the identification method used by the CID agent was unnecessarily suggestive. This issue is unchallenged on appeal and we agree with the military judge’s conclusion that the pretrial identification was unnecessarily suggestive.

A footnote tells us that

Even without the CID agent showing SPC AM appellant’s Facebook profile picture before trial, SPC AM would have seen the photograph absent any error in law enforcement procedures. While SPC AM was waiting to be interviewed by CID, her father sent her the picture of appellant to her phone. She opened up the picture but “didn’t even take a glance at it” since she was waiting for the interview. However, after CID showed her the picture of appellant from Al-Shamesi’s phone, she looked at the picture her father sent and confirmed that they were the same photographs.

(Further potential contamination.) As I read the opinion, CID did nothing to copy and or preserve any of the photographs or images used by the complaining witness for her out-of-court identification which was a foundation for the in-court identification. By that failure, the CID set up the opportunity for the defense to impeach her with other photographs of the night in question and which CID had apparently failed to look for.

So, on appeal, the issue is whether the military judge made a mistake in letting the complaining witness identify appellant after having been exposed to an unnecessarily suggestive pretrial identification procedure.

Here are some initial resources to get the defense counsel started in challenging identifications.

NIJ, OJP, USDOJ, Eyewitness Evidence: A Guide for Law Enforcement (and DC seeking to XE on a bad ID). https://www.ncjrs.gov/pdffiles1/nij/178240.pdf

You might also take a look at the following for a starting point when ID is an issue. Wise, Richard A. and Safer, Martin A., “A Method for Analyzing the Accuracy of Eyewitness Testimony in Criminal Cases” (2012). Court Review: The Journal of the American Judges Association. 387. http://digitalcommons.unl.edu/ajacourtreview/387

“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW]. Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . …. was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process. ”

Today (5 February 2018) the Army Court of Criminal Appeals agreed with us. When a military jury decides to convict a person because of sexual assault prevention politics and the Service public relations–that’s unlawful command influence (UCI).

Former airman Devin P. Kelley had choked his wife and put a gun to her head. He’d fractured her baby’s skull. He’d made threats to his commanders and he’d been committed to a mental hospital. Those acts foretold Kelley as a potential killer, experts say, and make the Air Force’s failure to enter his name into an FBI database especially egregious.

For those looking for the future of changes to the UCMJ and the MCM, there are a number of seeds in this article.

One has already taken on significant support–a specific offense in the UCMJ of domestic violence.

Another supports what’s likely coming–military judge sentencing regardless of pleas and forum choice on the merits. Military judge sentencing is almost always the case in guilty plea cases already through a pretrial agreement.

Christensen said other mistakes in the Kelley case contributed to the tragic outcome. Gen. Robin Rand, Kelley’s court-martial convening authority, erred by allowing a military jury – with few sentencing guidelines and no experience — to sentence Kelley as part of a pre-trial agreement after he pleaded guilty.

Would such a provision lead to more naked guilty pleas? Like my colleagues, I have sometimes advised a client to do a naked guilty plea because the convening authority was unwilling to allow members for sentencing as part of a pretrial agreement. There are also times we have done what’s sometimes referred to as a rolling guilty plea.

A new rule of evidence similar to Mil. R. Evid. 413 and 414.

I wonder if people will look at more creative options for sentencing practice?

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine. Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the case, and ordered them to appear before him in person here at Guantánamo or by video feed next week. At issue was Baker’s authority to excuse civilian, Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case of because of a secret ethics conflict involving attorney-client privilege. Also, the general refused a day earlier to either testify in front of Spath, or return the three lawyers to the case.

Miami Herald.

Here is a summary report from the Navy of some of the investigations.

Here is the appointment of a Central Disposition Authority for disciplinary actions related to the collisions.

A timeline of the FITZGERALD collision is here and here.

Brock Vergakis, The Virginian-Pilot, 7 June 2017. The VP summarizes:

Black sailors were 40 percent more likely than white sailors to be referred to a court-martial over a two-year period examined by an advocacy group that focuses on military justice. . . . But the report notes that the disparity between black and white sailors “nearly disappeared when considering only post-referral outcomes.” . . .

For example,

In 2014, 68% of white sailors with a case referral were diverted from special or general court-martial, compared to 67% of black sailors. There was also little difference between the rates for 2015 (74% of white sailors and 75% of black sailors). The proportions of black and white sailors convicted at special or general court-martial were highly similar as well.

Can we interpret this last point to be positive in how a military judge or members panel view and evaluate the evidence at trial?

The report referred to is here at Protect Our Defenders, and is based on data from 2006-2015.

Protect Our Defenders (POD) is dedicated to exposing and eradicating bias within the military justice system and to ensuring that all service members are afforded a fair, efficient, and impartial system of justice. Through our work, we have witnessed what appeared to be indications of racial disparities in the military justice system. These indicators were consistent with the experiences of POD’s President, Col Don Christensen (ret.), as a military attorney and with data he knew had been tracked by the Air Force for decades.

Of interest, according to the report, the Services fall out as follows

Air Force: 71% more likely.

Army: 61% more likely.

Navy: 40% more likely, although this is based on figures only for 2014-2015.Marine Corps: 32% more likely.

Marine Corps: 32% more likely.

The Coast Guard does not have such data.

The report forms a basis for the continued push to have lawyers, not commanders, “determine when to refer a case to court-martial, thereby reducing the potential for bias based on familiarity, friendship, race, or ethnicity.” I notice the report does not look at gender?

The Findings do note:

Findings for other racial groups varied, with some evidence that non-black people of color may have higher military justice or disciplinary involvement than white service members in some service branches. The primary exception was Asian service members, who appear to have lower military justice or disciplinary involvement than their white counterparts.

And a related conclusion:

Evidence for other racial groups was mixed. For example, Asian service members appear to have lower military justice or disciplinary involvement than their white counterparts, although this data was only available from the Army and the Navy. However, combined groups of non-black service members of color (and typically those of unknown race) often had higher military justice or disciplinary involvement. As such, it appears likely that disparities also exist for other racial groups, but the size and nature of these disparities may vary by race and service branch.

How was the data gathered?

On March 7, 2016, Protect Our Defenders (POD) submitted requests under the Freedom of Information Act (FOIA) to each military service branch, seeking demographic information on disciplinary and military justice proceedings.

I have not seen an official response, will advise.

[Update]

A spokesman for the Pentagon said officials will review the report. “It is longstanding Department of Defense policy that service members must be afforded the opportunity to serve in an environment free from unlawful racial discrimination,” said Johnny Michael, a Pentagon spokesman. “The department will review any new information concerning implementation of and compliance with this policy.”

Tom Vanden Brook, USA Today, 8 June 2017.

The study’s findings appear to mirror how blacks are sentenced and imprisoned by civilian courts around the country. The Sentencing Project, in June 2016, found that blacks are imprisoned at five times the rate of whites in state prisons across the country, and roughly 10 times the rate in five states.

Greg Price, Newsweek, 7 June 2017, see also,

“The report, while certainly eye-opening, should only be truly surprising if we believe that the United States military is a colorblind institution, which it is not and has never been,” said Chad Williams, a professor of African and Afro-American Studies at Brandeis University. He said the same racial biases in the civilian criminal justice system are also in the military justice system. “The report reflects the continuation of a long historical practice of viewing black servicemen and women as a ‘problem’ that must be controlled through various measures, mostly notably the military justice system,” he said.

Safia Samee Ali, NBC News, 7 June 2017.

And now for something completely different from the Washington Times.

Rep. Martha McSally (R-Ariz.) this week will introduce legislation meant to fight nonconsensual sharing of “private, intimate media” in the military, following outcry over the Marine Corps’ nude-photo-sharing scandal. The Protecting the Rights of IndiViduals Against Technological Exploitation, or PRIVATE Act, “defines when photo sharing is a crime, which is not clear in current law, and addresses questions related to freedom of speech and intent,” McSally said in a letter seeking cosponsors for the bill.

The Hill.

[W]hen the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published

people thought we might see a true effort to address “junk science being used to convict innocent people.”

The report was scathing except in regard to DNA. “The report did spawn the creation of the Federal Commission on Forensic Science, which has proven, over the last three years, to be a totally toothless tiger, accomplishing essentially nothing.”

The President’s Council of Advisors on Science and Technology has issued an additional report that is highly condemning of current forensic practices.

Do not expect much change–the FBI and DoJ will continue to use junk science, and you can sure expect the military to do so. See Jordan Smith, FBI AND DOJ VOW TO CONTINUE USING JUNK SCIENCE REJECTED BY WHITE HOUSE REPORT. The Intercept, 23 September 2016.

§ 11. Default state of mind proof requirement in Federal criminal cases If no state of mind is required by law for a Federal criminal offense— (1) the state of mind the Government must prove is knowing; and (2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.