Errin Morris, Cognitive Biasl and Evaluation of Forensic Evidence, The Champion, NACDL, May 2012.

Remember, USACIL and all the others get a full brief sheet on why the evidence should be tested and lots of facts. The subsequent testing is not done in the blind.

Paul C. Giannelli (Case Western Reserve University School of Law) has posted Microscopic Hair Comparisons: A Cautionary Tale on SSRN. Here is the abstract:

According to the National Academy of Sciences (NAS) Report on forensic science, “testimony linking microscopic hair analysis with particular defendants is highly unreliable.” This is a stunning conclusion because hair evidence has been admitted in numerous trials for over a century. The NAS Report was not the first to raise issues concerning hair evidence. In 1996, the Department of Justice issued a report discussing the exonerations of the first twenty-eight convicts through the use of DNA technology. This report highlighted the significant role that hair analysis played in a number of cases of these miscarriages of justice, including some death penalty cases. In 1998, a Canadian judicial inquiry into the wrongful conviction of Guy Paul Morin was released. His original conviction was based, in part, on hair evidence. The judge conducting the inquiry recommended that “[t]rial judges should undertake a more critical analysis of the admissibility of hair comparison evidence as circumstantial evidence of guilt.”

I saw a military jury convict Hennis on April 8 and sentence him to die Thursday[.] Hennis’ lawyer, Frank Spinner, said at the bottom of the courthouse steps that the jury never got to know his client, who did not testify. The jurors instead were treated to gruesome photos of the murder scene, he said.

That was Hennis’s choice. He was not required to testify. The members would have been instructed that they could not consider the declination to testify as evidence of guilt or hold it against him.

[T]he facts don’t help Hennis. First, he adopted a dog from a woman who was found murdered two days later. His bad luck. Second, a man who had never seen him before says he saw a man fitting Hennis’ description get into a white Chevrolet Chevette near the crime scene that night. The police sketch and Hennis’ mug shot are shockingly similar. Then, Hennis has no solid alibi for his whereabouts both times someone used Katie Eastburn’s stolen ATM card. A witness at the ATM described a tall man climbing out of a small, white car, like the kind of Chevette owned by the 6-foot-4 Hennis. A day after the murders, Hennis happened to take a single garment to be laundered, a Members Only jacket, like the kind a witness said the suspect near the scene had worn. Then, neighbors reported, he just happened to be burning items for hours in a barrel later that day. Beyond all that, there’s the DNA. There was maybe one place in the world where Hennis’ DNA could have been found that would have fatally undermined his version of events, and that’s where it was found – inside Katie Eastburn.

CAAFLog links to an interesting report of Mr. Eastburn’s reaction.

The former Coast Guard Sector Anchorage Commander was awarded the maximum allowable punishment at an Admiral’s Mast Friday and will retire on July 1 in the grade of lieutenant with a general discharge in lieu of trial by a general court-martial. Capt. Herbert M. Hamilton, III, was relieved of command in May 2009. An investigation conducted by the Coast Guard Investigative Service revealed that Hamilton had inappropriate relationships with several women, including officer and enlisted Coast Guard members, and civilians, over a period of more than 13 years. Hamilton also was charged with misusing government computers and cell phones; making false official statements; and soliciting an enlisted member to destroy evidence. His retirement as a lieutenant in lieu of trial by a general court-martial is the result of a pretrial agreement and Hamilton’s unsatisfactory service in the grades of captain, commander, and lieutenant commander.

Thanks to cgblog.org.

2. Hennis. I’m sure you are now aware that Hennis was convicted of three premeditated murder charges in less than three hours of deliberation. The sentencing part of the trial began today.

Military jurors began sentencing hearings Friday to determine if a soldier convicted of murder in the slayings of a North Carolina mother and her two children will get the death penalty or life in prison.

Here’s another interesting take on the prosecution of Hennis by an editor who believes he’s guilty.

WRAL.com has this “victim impact” information about the Hennis case.

3. Hasan has now arrived at Belton County Jail where he will likely stay until he is sentenced.

Maj. Nidal Hasan was airlifted from a San Antonio military hospital to the Bell County Jail in Belton about 4 a.m. Friday. He had been at the military hospital since shortly after the Nov. 5 shooting spree that left him paralyzed.

4. A fraud through faked service:

A man who falsely claimed a chestful of military medals was sentenced to a year in prison and was ordered to repay $11,098 in veterans benefits he shouldn’t have received. Thomas Barnhart, 59, had 21 years of legitimate Navy and Coast Guard service, including offshore duty in Vietnam. But starting in 1979, he began inflating his experience in claims for promotions and benefits, Assistant U.S. Attorney Jake Jacobsen told U.S. District Judge James Turk today in Roanoke.

5. You may have been following the issue of DoD wanting to shut down WikiLeaks, and in particular the issue of a recently released video of an Apache helicopter attack. Political Theatrics has this post.

Wikileaks released a 17-minute video on April 5th which depicted an Apache helicopter opening fire on a group of innocent Iraqi’s in New Baghdad in 2007; two of those killed were Reuters Journalists carrying their camera bags over their shoulders – Namir Noor-Eldeen, 22 and Saeed Chmagh, 40. On Monday evening, the Pentagon acknowledged and verified the legitimacy of the video.

Consortiumnews.com has another article on this subject.

Not only did a U.S. military helicopter gunship mow them down amid macho jokes and chuckling – after mistaking a couple of cameras for weapons – but the American attackers then blew away several Iraqis who arrived in a van and tried to take one of the wounded newsmen to a hospital. Two children in the van were badly wounded. “Well, it’s their fault for bringing their kids into a battle,” one American remarked.

6. Capital Flyer has more dire warnings on the career impact of a DUI.

7. FayObserver has this piece on the Pernell Article 32, UCMJ, hearing ongoing at Fort Bragg.

A Fort Bragg soldier accused of a rape and break-ins on post told an investigator he heard a voice in his head called Jason that told him to do “bad things,” according to testimony at an Article 32 hearing.

The Army began its prosecution in 2006 after a cold case detective with the Cumberland County Sheriff’s Office ordered DNA tests on the rape kit of Eastburn and on a blood sample from Hennis. That testing, conducted by the N.C. State Bureau of Investigation, matched Hennis’ DNA to sperm found in the rape kit, according to court documents. The military has done further testing, lawyers said Monday. One of the tests found Eastburn’s DNA but none from anyone else, said Lt. Col. Kris Poppe, who is one of Hennis’ defense lawyers. Capt. Matt Scott, one of the case’s four prosecutors, argued that the technician who tested the DNA said Eastburn’s DNA could have washed out any male DNA in the sample. The technician suggested another DNA test, one designed to look only for male DNA, Scott said. The male DNA test was done. It did not clear Hennis as the source of the sperm, but Poppe said the result is not precise. The defense lawyers have done their own DNA testing and have not shared the results with prosecutors. Scott told the judge, Col. Patrick Parrish, that the defense team will try to use the Army’s DNA results to mislead the jury, and he asked Parrish to require that defense lawyers share their DNA test results.

R.C.M. 701(b) covers reciprocal discovery by the prosecution. Here is the relevant part of the rule, R.C.M. 701(b)(4).

. . . possession, custody, or control of the defense that the defense intends to introduce as evidence in the defense case-in-chief at trial or that were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that witness’ testimony (emphasis added).

So, IMHO until the defense puts a DNA examiner on the witness list there appears to be no need to provide any of their own DNA test results. Further, the defense is not required to disclose the DNA results unless they intend offering the information in their own case. (And by the way, contrary to some new arguments that are coming up in some Article 32, UCMJ, hearings that I have done, there is no reciprocal discovery at an Article 32, UCMJ, hearing. See R.C.M. 405. As I frequently say, R.C.M. 405 is a stand-alone “manual” of rules of procedure and evidence at an Article 32, UCMJ, hearing. Except for certain of the rules of on privileges, you can rip out that part of the M.C.M. and you don’t need anything else from the manual. Reciprocal discovery does not apply until after charges are referred and if the defense submits a discovery request.)

The DNA evidence may face another challenge. The judge and lawyers briefly discussed a story which appeared in The Fayetteville Observer on Monday about a pending review of thousands of old cases by the State Bureau of Investigation. . . . The state attorney general ordered the review after North Carolina’s Innocence Inquiry Commission last week exonerated a man in part because of a problem with the SBI lab. In the early 1990s, the lab did not tell anyone that preliminary blood test results used to convict the man were found to be wrong in follow-up testing. . . A longer version of that news article, published Sunday in The News & Observer newspaper in Raleigh, said a forensic scientist who does consulting for defense lawyers believes the SBI lab is troubled. “They seem to be bending the science often,” she told the N&O, and she said she found an incident in which the lab mixed up the DNA of a suspect and the victim.