Don't Ivy League law journals fact check?

The Court-Martial Trial Practice blog provided this link to a Yale Law Journal note on gangs in the military that I made the mistake of reading today. Gustav Eyler, Note, Gangs in the Military, 118 Yale L.J. 696 (2009).

As I've often disclosed in the past, I was one of the appellate defense counsel on the Quintanilla case, as were a couple of the other contributors to this blog. The military gang note discusses the Quintanilla case, making erroneous factual statements unsupported by the cited authority. The note includes the following passage:

The presence of gang members in the armed forces poses worrisome problems. In the military, gang members threaten unit order and compromise base security. A shocking example of this is found in the facts of United States v. Quintanilla, in which a Marine sergeant and self-proclaimed gang member shot his commanding officer and executive officer -- both lieutenant colonels -- and threatened to continue killing officers until his fellow gang members were released from confinement.

Id. at 704.

The Quintanilla case may tell us a lot about the dangers posed by untreated mentally ill Marines who self-medicate with excessive amounts of alcohol, but it doesn't tell us anything about military gang members for the simple reason that Sgt Quintanilla wasn't in a gang.

In support of its factual assertions about Quintanilla, the note cites four pages from CAAF's decision in the case (63 M.J. at 30-33) and two pages from NMCCA's decision in the case (60 M.J. at 854-55). None of these pages supports the assertion that Quintanilla was a "self-proclaimed gang member." None supports the assertion that he was a gang member at all. None provides any indication that he threatened to continue killing officers until his fellow gang members were released from confinement. I'm at a loss to understand how those statements could be printed in the Yale Law Journal without any supporting citation that verifies those factual claims.

The closest -- and this isn't close -- that the supporting footnotes come to the text's factual assertions is this quotation from NMCCA's opinion:

The appellant talked about why he shot the CO and XO, complaining that he wasn't treated well in the squadron and that he did it for his "brown brothers," or words to that effect. At one point, the appellant stood up, pulled down his coveralls, took off his undershirt, and displayed the tattoos that covered his upper body. One of the large tattoos read "Sureno," which the Government argued was a reference to Southern California gangs.

118 Yale L.J. at 704 n.45 (quoting 60 M.J. at 855).

While the author calls this "[a] particularly relevant section," absent from it are any assertions that Quintanilla proclaimed himself to be in a gang, that he was actually in a gang, or that he threatened to continue killing officers until his fellow gang members were released from confinement.

I don't expect the note's author to read the record of trial, but if he did, he would have been aware that even the government's own gang expert--who didn't mind embellishing, like when he falsely claimed to be an associate professor at U.C. Berkeley's Boalt Hall School of Law, R. at 244--repeatedly testified that there was no evidence that Quintanilla was or had ever been in a gang. See R. at 693, 694, 700, 703. As for that tattoo, if I had a large curly W tattooed on my back (and I'm not saying I don't), that wouldn't make me a member of the Washington Nationals. A defense gang expert testified that Quintanilla's tattoos were actually inconsistent with gang membership because his combination of tattoos might get him killed by a gang. R. at 730.

Again, I don't expect the author to know any of this material from the record. What I do expect the author to do is limit factual assertions to those that can be verified and to provide supporting citations. And that the author plainly failed to do. I also expect another student editor during the review process to compare the factual assertions in the note to the supporting citations and determine whether the factual statements are supported by the citations. That process appears to have broken down as well.