Big Navy is trying to work around a recent military court decision striking down a fleet-wide rule forcing sailors to report any drunken-driving or other civilian arrests to their command. Navy Secretary Ray Mabus revised a high-level Navy regulation July 20 in response to the case of a chief who claimed the self-reporting requirement was unconstitutional and violated his Fifth Amendment rights against self-incrimination.

Here’s where this began.

In United States v. Serianne, the CAAF affirmed an NMCCA decision that a Navy order to report civilian DWI/DUI convictions was unlawful and not enforceable at court-martial. Navy Times reports: The Navy’s self-reporting requirement for drunken driving arrests will fundamentally change as a result of a recent military court ruling, the Navy’s top lawyer said. A new rule is in the works that will continue to require sailors to notify their command about civilian arrests, but commanding officers will not be able to use that information to seek disciplinary action or a court martial, said Vice Adm. James Houck, the Navy Judge Advocate General.

In December last year I commented on the possibility of:

More work for lawyers – repeat. Just when you were starting to worry that there wouldn’t be work – along comes DoD with a new policy about officer and senior enlisted civilian misconduct. The policy requires that officers and senior enlisted inform their command about civilian convictions. The policy directs that the Services issue (punitive) regulations and a reporting system. More “show cause” Boards, more administrative separation boards, more Article 15′s for failure to report — yes, more work for lawyers. This link should take you to the policy memorandum. DoD gave the services time to put together their own implementing regulation. The regulation is intended to be punitive and can be prosecuted at court-martial as a violation of Article 92, UCMJ. The regulation may be in jeopardy (at least within the Navy and Marine Corps) if Serianne is not certified to CAAF, or it is certified and CAAF agrees. Of course if CAAF were to agree, then likely all the regulations may fall.

Preliminary Outline of Draft Forensic Reform Legislation – 5/5/10.

Thanks GR.

In addition, Innocence Project announces that:

The American Statistical Association announced today that it was endorsing the recommendations outlined in last year’s groundbreaking National Academy of Sciences report on forensic science.

It would appear that USACIL would be covered as being funded by an organization that takes federal money – a lot of federal money.

Included in the task force’s 30 primary recommendations are a number of actions for helping victims of sexual assault, such as a suggestion that legislation be enacted requiring the Uniform Code of Military Justice to include a comprehensive provision on privileged communications between victims of sexual assault and victim’s advocates. The task force interviewed service members who reported being re-victimized when their previous statements to medical personnel and victim’s advocates were used to cross-examine them in courts-martial.

This suggestion continues the move toward prohibiting cross-examination of a complaining witness at court-martial. Before long they will have a rule that says you can’t cross-examine a complaining witness about false, incomplete, or inconsistent statements made to investigators or at an Article 32, UCMJ, investigation.

The suggestion also mischaracterizes the advocates role in the proceedings. Or perhaps it does reflect the reality — that most so-called advocates are merely adjunct trial counsel not in disguise. Perhaps they should be included as part of the prosecution team, then we can exclude them from supposedly private interviews with complaining witnesses.