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Xmas Eve

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.”

 

LAWYER’S CORNER – ARTICLE 93, UCMJ, CRUELTY

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].

 

 


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