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October 2018
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TEACHING TOLERANCE.  The Southern Poverty Law Center has created a program designed to help children  separate fact/fiction on the Internet; the program director aims to convey “the ability to be fluent, savvy, and safe online.”


WHERE ARE US TROOPS?  A recent Time Magazine article reveals that approximately 16 percent of total US armed forces strength is in Europe; and – surprisingly – 18% in Africa!


GUNS. We pass without comment a statistic that, on a recent record-breaking day, over 203,000 Americans applied for gun permits.


BASIC PHYSICS?  Jeff Goodell has written THE WATER WILL COME, expressing his concerns over climate changes.  He argues basic physics: Warm air holds more water vapor than cold air.  As result, there’s more evaporation and resulting drought as the planet warms.    He claims that Hurricane Harvey produced the greatest rainfall in American history.  Meanwhile, he comments, Greenland and Antarctic are melting, returning that water back to the oceans.


LAWYER’S CORNER.   The Champion Magazine September/October 2017 has an excellent article on admitting emails into evidence. Plenty of material for thought as to theories of admissibility – business records, present sense impression, excited utterance, and the residual exception.   Good material on authentication completes the article.

The same issue has good advice on how to represent medical professionals in criminal cases, civil lawsuits, licensing board matters, and the loss of credentialing

GOLDEN OLDIES.  Years ago, during the 1984 Panama Canal treaty negotiations, a play was staged in the Republic.   An assertive Panamanian government sought to put “Uncle Sam” on trial for the supposed “rape” of the young nation.  Uncle Sam – a wily character, according to his detractors – raised the expected defense:   Panama had consented.    In this story, the wise Panamanian judges refuse to buy that argument; in those early days, they reasoned, Panama was a young woman who was underage; she was unable to consent to the lecherous Uncle Sam.

INTERNMENT.    Most Americans know about the internment of American Asians in World War II, particularly in California.  Not so well known is how England concurrently interned about 4,000 people of Italian origin amid general suspicion of their loyalties.  Most were sent to the Isle of Man.

Among them was the father of actor Tom Conti.  The senior Conti had been in the Italian army in World War I.  After the war, he settled near Glasgow, Scotland as a barber and ladies’ hairdresser.  He married a Scottish woman called Maisie    He hated Mussolini regime and was astonished – after 20 years in Britain – to be considered a potential fifth columnist.

Churchill apparently uttered the phrase “collar the lot” that summer- – a call for all enemy aliens in Britain to be locked up.  Invasion seemed imminent and Churchill was taking no chances.

In the following months, about 30,000 Germans and Austrians – including Jews who had fled the Nazis — were arrested. Also detained were about 4,000 Italians, most of whom, like the senior Conti, were loyal to the allies.

Actor Conti relates one story of interrogation – that of his godfather.  The British officer in charge said: “We know that you have two sons; we’ve found one.  You must tell us where the other is.  Immediately!”

The response: “Of course, I tell you.  He’s in the Royal Air Force.”



Article 93 prohibits cruelty and maltreatment of those “subject to his orders.”

The UCMJ generally requires an individual to obey lawful orders of his/her superiors.  But who is a superior?   The highest military court has selected a narrow interpretation.

In US v. Curry, a yeoman first-class was convicted of oppressing a female petty officer — junior to him only in rank — by suggesting she should give him a body massage.   Curry’s conviction was set aside – the victim was NOT subject to his orders despite the fact that he slightly outranked her.  She was under no duty to obey his orders; and he lacked authority over her and could not order her to do anything.   See US v. Curry, CMR LEXIS 1144, 882 – 0719 R N.M.C.M.R. 31 July 1991 – unpublished.

In  US v. Dickey, 20 CMR 486 (ABR 1956), the accused was commander of an army unit in Korea; he was responsible for the general supervision of certain Korean nationals.   Dickey was convicted of Article 93 maltreatment for instructing subordinates to have their guard dogs attack a victim without justification.   The Army board [predecessor to the Army Court of Criminal Appeals] limited Article 93 to persons in a command capacity, prohibiting them from maltreating those under their supervision.   Dickey was not “in command” over the Korean national; ergo, this was not maltreatment under Article 93.

See also the ARMY LAWYER for July 1995.  Major William T. Barro authored Sexual Harassment and the Uniform Code of Military Justice, A Primer for the Military Justice Practitioner.   He states that, based on the precedents, the rule of lenity applies.  This is a rule of statutory construction which provides that – in cases of ambiguity and where reasonable minds can differ as to the meaning — the phrase in question should be given the interpretation favoring the criminal accused.

Addressing Article 93 directly, the author concludes:

Application of the rule to this case would seem to limit the meaning of “subject to his orders” as contained in article 93, UC MJ, to those individuals supervised in some direct way by the accused [emphasis added].




MISSING CHILDREN.  Immigrant children from Latin America are in the news headlines lately.  But Rene Denfeld reminds us that an astounding 61,000 foster children in the US annually come up “missing.”

HOW TO ARGUE.  Author Kathy Cramer reminds liberal readers that arguing with political opponents may be a fruitless task.   0n the other side are populists –their views are not merely those of President Trump but, rather, represent a sincere electorate that sees the system as badly broken.

GO NAVY!  Dwayne Day reports that the modern GPS system was greatly forwarded by the Navy’s Transit Navigation Satellites, the first step towards personal GPS a few decades later.

A BORING PRESIDENT?   Former Sec Def Donald Rumsfeld honors the presidency of Gerald Ford.   It was Democrat Tip O’Neill who said “God has been good to America, especially during difficult times.  At  the time of the Civil War, He gave us Abraham Lincoln.  At the time of Watergate, he gave us Gerald Ford.”   Rumsfeld’s appreciation cites the late president’s kindness, Midwestern politeness, and willingness to put the interests of the Nation ahead of his own.

BREAST CANCER?  Author Barbara Ehrenreich challenges current beliefs.  She claims that repeated international studies indicate that mammograms have not reduced mortality from breast cancer but – to the contrary – exposed women unnecessarily to cancer-causing levels of radiation.

MACHINE VERSUS HUMAN. A Washington Post article on artificial intelligence points out that “thinking” machines are already writing financial news, sports stories, and weather reports!

TRIAL AND ERROR.  A Washington Post Outlook article resurfaces some “fake science.”  A 2013 study at Northwestern University’s Medill Justice Project reveals that the now-discredited shaken baby syndrome played a role in about 3,000 convictions.  The article faults appellate courts which have made it extremely difficult for those convicted by “bad science” to win a new trial.

Another target is bite mark analysis – the claim that there was scientific validity to dentists claiming they could match bite marks on a victim to the teeth of a defendant.  By 2004, 37 US jurisdictions had accepted this.  But in the 1990s, DNA analysis began to show that bite mark testing was “junk science” and hardly reliable.

4 GREAT QUESTIONS.  Mystery writer Louise Penny in Still Lives has her protagonist-detective mentor a young police officer with four sentences everyone should employ:

  • I’m sorry
  • I don’t know
  • I need help
  • I forget


LAWYER’S CORNER.  We understand that military attorneys dealing with ROTC have come against an interesting dilemma.  Suppose a college student signs on – in good faith – for a ROTC specialty open to males only.  That cadet later elects to have a “change operation” in which he becomes a she.   Should the individual lose the scholarship?













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.