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 Heart disease
· 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:  by showing that, absent the error, there was reasonable probability of a different outcome; or  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.
PSYCHOLOGY AND TORTURE. What is the mature balance between national security and the rights of enemy combatants? Psychologist Roy Eidelson, writing a recent Washington Post commentary, notes a recent lawsuit filed by the ACLU for three CIA detainees. Two psychologists were accused of designing and overseeing an experimental program of supposed CIA torture and abuse. The case was settled out of court.
Often drawn by patriotism, says Eidelson, these psychologists often seek to methodically break the minds and bodies of the detainees. He believes they have been were present at facilities across the globe including CIA so-called “black sites” in faraway places such as Afghanistan, Cuba, Poland, and Lithuania.
CHANGING MORES. In regard to women’s rights, Irina Carmon notes that rape of one’s spouse was not a crime until 1979. Furthermore, the Supreme Court failed to recognize sexual harassment as a violation of Federal law before 1986.
FEELING OLD? Writer Amy Nicholson comments that the highest-paid actor in the world is former wrestler Dwayne “the Rock” Johnson.
A NATIVIST BACKLASH? Washington Post critic Carlos Lozada cites a series of successful authors feeding Europe’s anti-immigrant posture. They include Michal Houellenbeq, Eric Zemmouor, and Alain Finkielkrait. They suggest an apocalyptic future in which the world is engulfed by a relentless radical Islamic tsunami.
AMERICA AFTER TRUMP. E. .J Dionne’s new book ONE NATION AFTER TRUMP argues that seemingly neutral facets of the American political system have conspired in recent years to produce an unhealthy result. He sees the electoral college as an obvious example – in the past five presidential elections, the popular vote winner lost the electoral count. Furthermore, Mr. Dionne condemns partisan gerrymandering – Democrats enjoyed a 50.5% majority but controlled only 46.2% of the seats in the House. This is due, he reasons, to a highly-skewed system favoring rural and Republican areas.
The other day, we were successful in obtaining a “not guilty” finding in the case of a Marine corporal serving at an overseas embassy. Our client had been charged with cruelty under Article 93, UCMJ. A quick review of Article 93 reveals a limited class to whom it applies.
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 cruelty 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 a crime 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 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]..
A Washington Post book review summarizes the forgotten frontlines of World War II in Russia. After Hitler’s 1941 invasion of the Soviet Union, millions of Russian soldiers were captured. Young women filled the ranks – and even flew fighter aircraft.
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Writer Suzy Hansen invites citizens to see America as the rest of the world does. She criticizes the current President for physically pushing his way past the Prime Minister of Montenegro for a group photo of NATO leaders. She suggests “two Americas.” First, the America of work-in-progress, democracy civil rights, and Ellis Island. Second, the America of military force, CIA plots, economic meddling, and contempt for foreign cultures.
She argues that Americans see themselves as a people with uniquely good intentions who want foreigners to attain a better, freer life. This view of American superiority and goodness may not be warranted, she cautions.
Instead, she suggests that American Cold War historians deliberately constructed a world view in which “Westernization” was the politically correct pretext for US economic or political interventions abroad.
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Writer Franklin Foer prophesies a grim future run by technological monopolies, radically molding humanity and redirecting human evolution. He urges a pause to consider the consequences of these technological empires. He wants humans – not Internet giants– to determine the future of mankind. He also cautions against social media trashing of our privacy.
Perhaps this is easier said than done. He relates that, on average, Facebook users spend 1/16 of their day on this site!
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The Southern Poverty Law Center reports troubling events in the first 34 days after the election of President Trump. The group counted 1,094 incidents of bias in the United States; and it calculated that 37% of them referenced to the President-elect, his campaign slogans, or his percussive remarks about sexual assault.
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An Internet friend sends the following amusing signs —
Oregon electric company: We urge you to send in your payment on time; if you don’t, you will be de-lighted
Indiana restaurant window: Don’t just stand there and be hungry; come in and get fed up
Radiator shop in Chicago: Best place in town to take a leak!
Washington DC funeral home: Drive carefully; we’ll wait….
San Antonio septic tank truck: This truck is full of political promises