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November 2018
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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….


As time passes, here are some interesting statistics from a century ago –1917:

 ·         The average life expectancy for men was 47 years.

·         Fuel for cars was sold in drug stores only.

·         Only 14 percent of homes had a bathtub.

·         Only 8 percent of homes had a telephone.

·         The maximum speed limit in most cities was 10 mph.

·         The tallest structure in the world was the Eiffel Tower.

·         About 47% of the population made between $1000 and $2000 per  year.   The average US wage in 1910 was 22 cents per hour.

·         The average US worker made between $200 and $400 per year.

·         A competent accountant could expect to earn $2000 per year.

·         A veterinarian earned between $1,500 and $4,000 per year; a mechanical engineer got about $5,000 per year. 

·         More than 95 percent of all births took place at home.

·         Ninety percent of all doctors attended medical schools but did not have a college education 

·         Sugar cost four cents a pound.

·         Eggs were fourteen cents a dozen.

·         Coffee was fifteen cents a pound.

·         Most women only washed their hair once a month, and, used Borax or egg yolks for shampoo. 

·         Canada passed a law that prohibited poor people from entering their country for any reason. 

·         The five leading causes of death were:

o   Pneumonia and influenza

o   Tuberculosis

o   Diarrhea.

o   Heart disease

o   Stroke

·         The American flag had 45 stars.

·         The population of Las Vegas  was 30.

·         Crossword puzzles, canned beer, and iced tea hadn’t been invented yet.

·         There was neither a Mother’s Day nor a Father’s Day.

·         Two out of every 10 US adults couldn’t read or write.

·         Only 6 percent of  Americans had graduated from high school.

·         Marijuana, heroin, and morphine were all available over the counter at local corner drugstores.  

·         Eighteen percent of households had at least one full-time servant or domestic help.

·         There were about 230 reported murders in the country



 ORIGINALISM.  It’s interesting that the proponent of legal originalism, Supreme Court Justice Scalia, a Roman Catholic, so strongly favored “original intent.” Respectfully, his church saw the expansion of doctrine well beyond early Christianity –e.g., the Papacy, or unfolding of church doctrine on everything from celibacy to the Trinity to just war.   Given evolving church doctrine, why didn’t Justice Scalia embrace what was arguably a similar unfolding of Constitutional interpretation?

FOREIGN AID:   Many citizens believe this country overspends on foreign aid.   Surveys appear to show that many estimate the US spends upwards of 20% of the Federal budget for foreign aid.   However, if columnist Michael Gerson is the right, foreign aid – including international development and global health – represents less than 1% of the Federal budget.   He argues that such assistance has usefully combated disease and destabilization, saving more than 1 million lives, mainly young children.

IMPEACHMENT?   Author Cass Sunstine has researched the where/when of impeachment in America.  Bottom line: impeachment has been traditionally a partisan affair.  Mr. Sunstine offers various definitions and rationale for impeachment.

SURVEILLANCE: Jennifer Granick has written an interesting book about American spies.  Today, she comments, many Americans probably approve current rules and policies – “we have nothing to hide.”  However, she warns of dangers to individual rights if targeting supports the political objectives of a given administration.   The dangers of abuse are manifest, she says, since approximately one in four Americans has some form of a criminal record.   It boils down to the old question – how to balance democracy, the rule of law, and civil liberties.

FLAWED TRIALS.  The June 2017 decision of the US Supreme Court in Weaver v. Massachusetts alarms some civil libertarians.  The Court seemingly made it more difficult for defendants to gain relief from convictions after flawed trials.  To persevere, the complaining party must prove prejudice.   That can occur in two ways: [1] by showing that, absent the error, there was reasonable probability of a different outcome; or [2] demonstrating that counsel’s error rendered the trial fundamentally unfair.  Critics deplore the Weaver decision as unfairly tweaking the concept of “structural error.”   [That is an error violating Constitutional guarantees that define a fair criminal trial].  Such structural errors are so dangerous that they defy harmless error analysis and historically trigger reversal.  However, Weaver seems to require the offended party to object to that error at trial.   The Catch-22:   Prejudice stemming from this type of error is nearly impossible to prove: How can anyone show – well after the fact – that violation of a basic right affected the outcome?

HAIR SAMPLES: The NACDL CHAMPION magazine discusses the zigzag history of hair sample evidence.   For decades, FBI analysts claimed they could tell whether certain hairs came from a given person.  However, the National Academy of Science has stated that there’s no scientifically accepted formula about the frequency with which particular characteristics of hair are distributed in the population.    Between 2009 and 2013, DNA testing exonerated three men serving lengthy prison sentence whose convictions rested, at least in part, on microscopic hair analysis.

MARIN PROTOCOL:  Interestingly, few accusers seem to take a lie detector test prior to going public, accusing prominent individuals of sexual misconduct.   Of course, it’s wise to keep such results private unless and until they appear to confirm the accuser’s story.   And certainly, the reliability of polygraphs is an open question.   However, lie detector tests may gain increased dependability from something called the Marin Protocol:   If several individuals take a lie detector test and reach the same result, there’s a cumulative effect of increased reliability.

BEETHOVEN’S BIRTHDAY.    December 15 is celebrated as the birthday of Beethoven, the famous composer.  Right to life advocates claim that – had prenatal data been available centuries ago – he would have been aborted for significant birth defects.




A series of pertinent – and impertinent – comments on military matters


EQUAL JUSTICE?  Rick Jones, a public defender in the Harlem area of New York City, comments on racism in American justice.   His main points – supplemented with extensive notes:

  • 42% of all school referrals to law enforcement are for black students, as opposed to 23% white and 29% Hispanic
  • Black juveniles are more than four times as likely as white peers to be committed to detention facilities
  • Black drivers are 2 ½ times more likely to have their cars search during routine traffic stops, compared to white drivers
  • People of color represents 2/3 of the life-sentenced population
  • Despite using and selling drugs at similar rates, African-Americans and Latinos comprise 62% of those in state prisons for drug offenses

ETHICS IN BLOGGING.  The NACDL’s Champion magazine warns about ethical pitfalls for attorneys using blogging and social media.  One problem is protecting client confidentiality.  Another common issue is inadvertently establishing a client relationship online by answering specific questions in response to queries.

CHALLENGES IN FEMINISM.  Commentator Ann Bernays recalls with affection her mother in the early part of the 20th century.   She continued to use her maiden name even after she married; and she became the first married woman to obtain a passport in her own name.  She soon found it a nuisance to repeatedly explain her name to clients, social contacts, schools, banks, and doctors.

ELEVATED BLOOD PRESSURE.  Northwestern University’s alumni magazine reports that segregation impacts the blood pressure of minorities.  An assistant professor of preventive medicine, Kiari Kershaw, found that the systolic blood pressure of African-Americans dropped between one to five points when they moved to more integrated neighborhoods.

SHIPS OF THE LINE.  For those not “Navy,” the expression ships of the line seems exotic. Turns out the phrase simply refers to war vessels sufficiently large to join the “line” of fighting ships.


LOOKING FOR TERRORISTS  IN THE WRONG PLACE?  Peter Bergen, a CNN national security analyst, says that Americans are worried about the wrong terrorists.  Of the 13 perpetrators of significant lethal and jihadist terrorism attacks in the United States since 9/11, all were American citizens or legal permanent residents.   In another study of 406 cases, more than 80% of those involved in terrorism were US citizens or permanent legal residents.

SECOND AMENDMENT ARGUMENT? We haven’t heard it elsewhere, so respectfully advance this thought – the Second Amendment speaks of a “well-regulated militia.” Question: does “well-regulated” simply describe Reserve/Guard forces?  Or does it imply that the militia (those who keep arms in defense of the Nation) are subject to regulation?

COMMAND INFLUENCE.  Recently, the Navy-Marine Corps Court of Criminal Appeals set aside the conviction of a Marine SSgt.  named Chamblin.  The reason – command influence, with the service’s top general supposedly meddling in the case.

SEXUAL HARASSMENT.   Current news reports have involved powerful individuals and inappropriate sexual behavior.  We think back to the former Judge Advocate General of the Air Force, who was found to have engaged in such conduct during sanctioned office visits.  He targeted female attorneys, some of them holding high rank.  It is troubling thought that these professionals, holding doctorates in law, nonetheless felt uncomfortable refusing his unwanted advances.