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June 2018
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Lawyer’s Corner

The March 2018 NACDL Champion magazine has interesting information.


GUANTANAMO.    A news article relates that roughly 780 individuals have been detained at this facility since 2002.


POSTPARTUM DISORDERS.  A new hope for defenders – post-partum depression and/or psychosis. The condition is described as being far more serious than “baby blues.”  Supposedly, postpartum depression affects one in seven new mothers – roughly 800,000 American women annually.  A new Illinois statute recognizes the condition as partial justification for criminal conduct, on both findings and sentence.


SHOTSPOTTER.  A new technology claims it can detect when a gun is being discharged through a system of rooftop microphones, particularly used in high crime areas.  A short article cautions that the new technology is far from reliable.


BORDER SEARCHES.  Border searches are a recognized exemption to the Fourth amendment.  The problem arises because of the Homeland Security practice of warrantless searches of laptops and computers at the US border.   Riley v. California is a recent unanimous Supreme Court decision holding that a warrant is required to search a cell phone seized incident to arrest.  But do the same considerations apply at US national borders?  The law is in flux at the moment, the article concludes.

Update on Military Matters in the News

  • PLEBE EXPELLED FOR RACIAL SLUR.   The Navy Academy has dismissed a white plebe for his racial slur against African-Americans in online communications, according to the Associated Press.


  • 2 CHAPLAIN STORIES. A Southern Baptist chaplain, Army Maj. Scott Squires, is facing disciplinary action after he refused to facilitate a marriage retreat including same-sex couples.  Squires argues that he was following the requirements of his endorsing agency, the Southern Baptist Convention.  An attorney for the denomination claims that Squires did nothing wrong and even found another chaplain willing to provide the service.
  • In a second story, Lieut. Col. Khallid Shabazz is set to become the first Muslim division-level chaplain in history of the Army.


  • THE NAVY WANTS YOU! The submarine service is interested in more female enlisted sailors earning their dolphins and serving aboard submarines, according to the Chief of Naval Personnel.


  • O-7 TRANSFERRED FOR INAPPROPRIATE LANGUAGE : Marine Brig. Gen. Kurt Stein, director of Marine and Family Programs, has been reassigned after referring to sexual-harassment allegations as “fake news.”


  • BLACK COL. NOMINATED FOR O-7.  Marine Col. Lorna Mahlock will become the first black woman wearing the rank of brigadier general.


  • BACK TO AIR FORCE WARRANT OFFICERS?   The Air Force is considering reinstating warrant officers for the first time in 60 years, following a RAND Corporation study.


  • … AND BACK TO ARMY PINKS AND GREENS?  The Army is close to a final decision on bringing back World War II-era “pinks and greens” service uniforms.Pink and Greens


MILITARY AND CLIMATE CHANGE.   Nearly half of U.S. military sites are threatened by wild weather linked to climate change, according to a Pentagon study.  Drought, wind, and flooding due to reasons other than storms topped the list of natural disasters that endanger 1,700 military sites worldwide, from large bases to outposts, said DoD.

A RACIALLY CHARGED INCIDENT. A TSgt at Nellis AFB in Nevada has been removed from her supervisory role and is now under investigation after posting a profane and racially-charged video to Facebook. This NCO ranted about the alleged attitude problems of black female airmen and non-commissioned officers under her. “It pisses me the [expletive] off that they [black female airmen] have no [expletive] respect and constantly having an attitude,” Lovely said. “What the [expletive] is up with that? … Why is it that every time I encounter, you know, my subordinates that are black females, they have a giant [expletive] attitude?”  Commanders are deciding what actions to take next against the E-6.


VETS SLOW TO EMBRACE NEW VA OPTION.    A new program designed to help clear  VA’s massive backlog of disability claims appeals has so far received little interest from veterans, despite promises it could trim years off their wait times.

Less than 3 percent of veterans invited into the program — about 330 individuals — have opted into the Rapid Appeals Modernization Program [RAMP] , launched in November and billed as a “more efficient” review process that could provide final decisions within a month.

RAMP was included as part of sweeping appeals reform legislation passed by Congress last year and was intended to help start to draw down some of the 340,000 cases languishing in the current case processing system.

JEFFERSON QUOTE?  A relative sent the following, citing Thomas Jefferson as its author:  “A government big enough to give you everything you want, is a government big enough to take away everything that you have.”

Now, a good friend reports that reported quotation will not stand up to  fact checking.   Neither this quotation nor any of its variant forms has been found in the writings of Thomas Jefferson.  Its first known appearance in print was in 1953.  It appeared frequently in newspapers in the 1950s (usually unattributed), and was even used in political cartoons.  It later became a popular saying among Republican politicians.  Governor Harold W. Handley of Indiana used it in his annual message to the Indiana General Assembly in 1961.   Barry Goldwater cited it in his 1964 run for president;  and Gerald Ford is on record quoting it in an address to a joint session of Congress in  August,  1974. This quotation was not attributed to Jefferson until relatively recently,  reports the fact checker.


A hospital commander at Joint Base Lewis-McChord in Washington has been relieved of command.  At least in part, this was due to advocating religion in ways making his airmen uncomfortable.

Several airmen were bothered by how the commander brought his Christian faith into the workplace, discussing religion in commander’s calls and making what some saw as disparaging comments about non-believers, such as “there are no atheists in foxholes.”  There were at least three atheists under his command.

The commander also apparently distributed birthday cards with Bible verses to his subordinates.  One major received a text containing a passage from Proverbs and admonishing her to maintain “military bearing.”

*  *  *

PARRIS ISLAND DRILL INSTRUCTOR PLEADS GUILTY TO MISCONDUCT.  Marine Corps Times reports that a former drill instructor at Parris Island has been sentenced to 45 days’ restriction and reduction to corporal.  He is one of seven Marines referred to a court-martial for the Parris Island hazing scandal, which blew up in March 2016 when Muslim recruit Raheel Siddiqui jumped to his death.

For this death, Gunnery Sgt. Joseph Felix was sentenced to 10 years in prison.  Felix was found guilty of physically abusing recruits.  One time, he ordered Siddiqui to run to one end of the squad bay and back after Siddiqui was unable to give the greeting of the day due to his sore throat. When Siddiqui collapsed to the floor, Felix slapped him, after which Siddiqui jumped up, ran to a nearby stairwell and leapt over the railing, falling nearly 40 feet.

*  *  *

RECRUITING DREAMERS. If Congress passes the Dream Act, Army recruiters see a tremendous opportunity to acquire high-quality recruits, says one analyst.  The legislation would provide temporary work permits and protection from deportation.

*  *  *

FAT BOYS AND GIRLS?  Obesity in young people in 10 states is hindering recruiting, says the Army.  Potential soldiers from the South are not as fit as others, according to researchers at The Citadel in South Carolina.

Obesity and lack of physical fitness are a threat to “military readiness and national security,” researchers said in the study, which was published in the Journal of Public Health Management & Practice.

*  *  *

GOLDEN OLDIES.  Years ago, recruits at the Army’s Fort Sheridan in Illinois and the Navy’s Great Lakes Recruiting Center got a lesson in geography from the Chicago Tribune newspaper. Recruits had learned their geography all wrong, insisted the Tribune. The state should properly be divided into two great sectors – “greater Chicagoland” and “downstate Illinois.”




Why would an innocent individual possibly accept a plea deal?  Jeffrey Stein, a public defender in Washington DC, responds with a troubling commentary in the Washington Post.    He relates how his client – desperate and in pretrial confinement, and isolated from his family – is sweating out a prosecution sentencing offer which will expire within the week.

Mr. Stein invites you to place yourself in the shoes of a public defender: You’re overworked and may not have time to check whether there are unreliable eyewitnesses, faulty assumptions, or rascals willing to lie.  A trial will take months of waiting before a jury hears the case.  You carefully explain the options to your client including the right to accept the plea offer, regardless of guilt or innocence. In some cases, he says, sentencing difference between accepting a plea and losing at trial can be decades!  [NOTE: in one recent case, a defendant who” took the deal” got three years; the one who chose to litigate got 30 years].

No wonder, 95% of all defendants accept offers, says Stein.  He cites statistics from the National Registry of Exonerations –15% of those later proven innocent originally pleaded guilty. That share rises to 49% of those exonerated of manslaughter and 66% of those exonerated of drug crimes.

It’s legal of course – – a client can admit to something he did not do and take what is called an Alford plea. Attorney Stein recalls the dreadful moment when the judge addresses the attorney and asks if counsel knows of any reasons the guilty plea should not be accepted.   Mr. Stein daydreams that he might shout that the plea is a product of an extortion system of devastating mandatory minimums and lopsided access to evidence; and that his client – facing an impossible choice —  is only trying to avoid a lifetime in prison.

*  *  *

A PROGRESSIVE CLAIM.    An Internet friend comments that all six current US Nobel prize winners in science are immigrants — last year, all six winners were immigrants as well.

*  *  *

EQUAL ACCESS TO CARE FOR PTSD.  The Army Times reports that service members receive varying levels of concerned medical health care, depending on what pay grade they hold. The concern is based on a new 18-month RAND report commissioned by DOD.

CIVILITY.   The Washington Post Style Section introduces Bernard and Leah Berman, both former White House social secretaries.  The Bermans authored a new book about treating people well called “The Extraordinary Power of Civility at Work and in Life.”  Bernard worked for the Obamas; Leah worked for George W. Bush.   Both authors insist they had the same goal in the White House – to make everyone who walked through the door feel welcomed, valued, and comfortable.  Today, today, some people believe tough language and name-calling as required.  The authors disagree, viewing incivility as a corrosive force which endangers democracy itself.

Several reasons suggest themselves for the lack of civil discourse –

·         Social media allows anonymity; people assert matters that would never say face-to-face.

·         Standards change – people are now outspoken about things they would never have revealed 10 or 20 years ago

·         Many feel the need for immediate gratification –we want what we want when we want it

·         Reality TV advances the loudest mouths and most outrageous behaviors – these get the most screen time, together with needless drama

·         By tradition, presidents did not speak ill of others in a personal way; that trend has reversed

·         Many feel things are not going well in the country and that they had been treated unfairly. This leads to anger, with many spoiling for a fight

The co-authors agree that there is a difference between being polite and being a pushover. The average person, they suggest, will try to “be nice” in an awkward situation or try to defuse things.  Sadly, many today see such politeness as a weakness.

How to make an uncivil world more civil?   The authors suggest staying objective; refusing to be drawn into the drama of bad behavior: not taking things personally; and simply being kind in daily life, saying thank you to the cashier or hello to the bus driver.

These steps, the authors conclude, will help “reestablish our humanity with each other.”

*  *  *

LAWYER’S CORNER.  Recent editions of the Champion magazine of the National Association of Criminal Defense Lawyers reveal:

·         Hair samples. No scientific basis exists to identify hairs as coming from a given individual.  So states the National Academy of Sciences, according to the NACDL president in an interesting article.  The magazine contains additional information on FBI microscopic analysis

·         Modern surveillance.  AMERICAN SPIES – MODERN SURVEILLANCE, WHY YOU SHOULD CARE, AND WHAT TO DO ABOUT IT by Jennifer Granick.   A thoughtful book review contrasts our complex world and the need for surveillance and security against the rule of law and civil liberties.


Psychologist Bella De Paulo of the University of California at Santa Barbara specializes in studying people who lie.   Her research reveals that college students tell an average of two fibs a day, while  average community members tell one lie per day.

She divides falsehoods into three categories:

  • Self-serving
  • Kind
  • Cruel

She claims that college students tell cruel lies less than 1% of the time; average citizens come in at 2.4%.   According to De Paulo,  President Trump had a 50% rating for fabrications in the third category, disparaging others.

CHRISTMAS COME?   Given huge changes in technology, watch for a wave of “sociable robots” for children.   The new robots far surpass computer assistants like Apple’s Siri.  These toys are designed to be “human” and likely will look to young children as a person rather than an appliance.

CHRISTMAS PRESENT.   We understand that one of this year’s new Barbie dolls is a Muslim-American  wearing a hijab.

CHRISTMAS PAST.  A dear friend of ours is a Vietnam veteran with PTSD writes moving poetry.  One of his poems  describes evil, intrusive thoughts which can bring down the warrior.    Many suffer from again imagining the anguished screams of the enemy . The poem ends on a happy note – after expert help with PTSD, things gradually improve.

LAWYER’S CORNER.    We keep encouraging a little bit of respectful courtroom humor, when appropriate, to ease tension.   Perhaps a humorous “take” might be allowed in describing the military specialty of those involved in the trial.

Some examples:

  • military podiatrist – time wounds all heels
  • motor repair shop: invite us to your next blowout
  • electrician – let us remove your shorts
  • maternity ward – a door which says push, push, push
  • military veterinarian temporarily absent from duty: Be back in five minutes. Sit! Stay!
  • computer guy/gal: Adam and Eve were the first people to not read the Apple terms and conditions.
  • chaplain: too hot to keep changing the sign – sin bad, Jesus good.  Details inside
  • psychiatrist: forgive your enemies – it messes with their heads
  • social media person: tweet others as you would like to be tweeted


A PATRIOTIC NOTE.   Going the rounds on email is the story of an airline captain and an American soldier, killed in battle, being returned home.

The pilot announces to the plane’s passengers:

Ladies and gentleman, this is your Captain speaking: I have stopped short of our gate to make a special announcement. We have a passenger on board who deserves our honor and respect.  His name is Private X, a soldier who recently lost his life.  Private  X is under your feet in the cargo hold.  Escorting him today is Army Sergeant  Y.  Also  on board are X’s father, mother, wife, and daughter.  Your entire flight crew is asking for passengers to remain in their seats to allow the family to exit the aircraft first.  Thank you.

The captain continues:

When the family got up and gathered their things, a passenger slowly started to clap his hands.  Moments later, more passengers joined in and soon the entire aircraft was clapping.  Words of ‘God Bless You’, I’m sorry, thank you, be proud, and other kind words were uttered to the family as they made their way down the aisle and out of the

He concludes:

It is worth reflecting on this event and the sacrifices that millions of our men and women have made to ensure our freedom and safety in these United States of America.


Certain hard truths are undeniable.  First, sexual molesters should “burn in hell.”   Second, defense lawyers must defend to the best of their ability.  Third, some allegations of abuse are shaky – particularly those involving by troubled or vindictive teens or situations where someone is manipulating children.

So the defender has a daunting job.   A suspect has been accused of violating/abusing a child.   Hearts go out to the child, whose trauma may be as crippling as the deed itself.

There are a lot of good materials available to assist defense counsel.   Among the more useful pieces of advice:

  • Given social media, check what if anything appears on Facebook, the Internet, or elsewhere on social media concerning this incident and/or the lifestyle of the victim.
  • Assess the complaining party by using PTSD checklists; delve into the degree to which the individual has been socially, mentally, physically, psychologically, and spiritually affected.
  • Employ the fact that individuals do not always remember accurately.

This last bullet is inspired by Peter Robinson’s excellent detective story, When The Music’s Over.   The victim is a sensitive, perceptive adult woman who tries to “get it right” but recognizes that memory might play  tricks on her.

Brainstorming a bit with author Robinson’s well-honed words, consider the following, either as fodder for cross-examination or for opening/closing statement:

  • Have you written down what happened, perhaps to help you recall? What is your experience with how accurate your memory is?  You can only imagine yourself from where you are now;  agreed?   That doesn’t mean you don’t remember;  it just means you’re looking back from a great distance, as if you were staring through the wrong end of a telescope, right?  You might think you see details, even recall smells and textures.   But they may not necessarily match the past exactly.


  • Don’t minds go off on tangents?   Do you agree that our recollections can be hopelessly mixed up?   Won’t you agree that memory is not necessarily accurate even though it is permanently in our head?   Isn’t it true that we must be careful before we take our memories as God’s truth?


  • Memories are funny things.   Sometimes we can remember specific days – what we were wearing, whether the music was too loud.   But a lot of times, we  talk to somebody else who has a completely different recollection.   And we have to admit our recall is perhaps inaccurate.


  • A lot of these things happened. Maybe we are remembering  them wrong.

In our memories, we often alter what we originally saw.   It’s as if our memory and imagination are in competition.  Perception fights with facts.  History goes up against fiction.


  • One thing gets easily transformed into the other — you cannot depend on memory to provide the kind of evidence to convict somebody beyond rational doubt.


  • Likely this situation was scary for you. Would you agree that our imaginations often run a little while when we are afraid?


  • Are you open to the fact that maybe you don’t remember all the details with total clarity? Maybe what you recall is only speculation.  Maybe your imagination is working overtime – after all, what happened must be a blur.   Sure, you are telling your “truth” the best way you can.    But won’t you  agree – that doesn’t mean you’ve got it right…


  • It’s odd how memory works. You think you are remembering details. But when you try to recall months or years later, things have shifted in your memory.  Maybe it didn’t happen the way you remembered it.     Maybe you forgot some things.  Maybe you added stuff.  Surely you cannot swear to every little detail….