The other day, the TV show “Madam Secretary” introduced a new character — the CHAIRWOMAN of the Joint Chiefs of Staff.
How times have changed! Not too many years back, the Air Force TIMES featured attractive females in uniform. The photo series was called “The Fair Force.”
THE CENTURION
A series of pertinent — and impertinent — matters relating to the military
PTSD? There is an excellent form to evaluate PTSD. It’s VA Form DBQ 21-0960 P-3. The form is readily accessible at www.va.gov/forms/form.
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Speaking of the VA, a resourceful client passes along a way to bypass the long wait to reach the VA Help line. He recommends dialing — 1 — 800 — 827 – 1000; then, ignore the voice commands and enter the numbers 1 0 4 in two- second intervals.
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A recent Washington Post Opinion article [26 July] suggests how many innocent persons have allegedly been convicted in the United States for murder. Samuel R. Gross reports on a year-old study published in the Proceedings of the National Academy of Sciences. Over 4% of defendants sentenced to death in the United States are later shown to be innocent. Mostly, through DNA testing. That is one in 25 wrongfully convicted — and sentenced to death.
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In a similar vein, Judge John L. Kane writes in the May 2015 issue of the NACDL CHAMPION magazine . He suggests that somewhere between 2% and 8% of convicted felons are innocent, but nevertheless plead guilty. In part, they want PTA protection. Sadly, he comments, this means our system has become one of pleas – not one of trials.
Judge Kane cites the derivation of the classical Greek word “injustice.” It literally translates out of balance.
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Sometimes crazy ideas come to us. Here’s one: During closing argument, defense counsel might compliment the prosecutor as a thoughtful, dispassionate litigator. That prosecutor will have the final say-so in closing. So, comments defense counsel, will the prosecutor be good enough to tell the members of the strongest arguments favoring the defense?
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Years ago, we got an assignment as an Air Force appellate court judge . Write the decision on the legality of prosecutions for designer drugs.
The defense theory of the case went something like this: The law cannot punish something not yet invented. At the time of these charges, the “meth lab” used by this accused had a new chemical formula. How could the accused be found guilty? How could the new substance be illegal — it was brand-new, hence not yet ‘criminalized.’
Author Jeffrey Grass raises some of the same issues in his interesting article in the May 2015 Champion. He takes a slightly different angle — the requirement that the government prove that a distributor knew that the drug constituted a controlled substance . He discusses McFaden v. United States, 753 F.3 432 (4th Cir. 2014), a synthetic drug case presently on appeal at the Supreme Court.
Mr. Grass addresses the scienter requirement. He also speaks about the Analog Act, 21 USC 802[32] and its three-part test: [a] the chemical structure of the substance is substantially similar [whatever that means ]to a controlled substance ; [b] the chemical substance has substantially similar effects to outlawed drugs ; and [c] the accused represented/intended the substance to have the same effect as a controlled substance.
The clash here, according to Mr. Grass, is between junk science, and the rigorous requirement for mens rea, He insists that the “substantially similar” standard fails to meet Daubert.
NACDL’s amicus brief is www/nacdll.org/amicus.
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