Wednesday, February 06, 2008

Resource alert -- good news and bad news

Which do you want first, the good news or the bad news?

The good news: there's a new issue of the Naval Law Review on NKO and it has several articles of interest to military justice practitioners. Here are the most interesting:

LCDR David M. Gonzalez, The Continuing Fallout from Crawford: Implications for Military Justice Practitioners, 55 Naval L. Rev. 31 (2008)

LT Keith B. Lofland, The Neglected Debate Over Sexual Assault Policy in the Department of Defense, 55 Naval L. Rev. 311 (2008)

LT Jessica Hudson, ENS Kyle Fralick & 1stLt John A. Sautter, Lightening But No Thunder: The Need for Clarity in Military Courts Regarding the Definition of Mental Retardation in Capital Cases and for Procedures in Implementing Atkins v. Virginia, 55 Naval L. Rev. 359 (2008)

The issue also includes two articles about the Military Commissions Act of 2006 and a few cats and dogs naval op law and military personnel law articles.

Now the bad news: the issue isn't on the NJS web site or in the Navy JAG reading room. Heck, volumes 54 and 53 of the Naval Law Review aren't even on the Naval Justice School's web site. If anyone wants to read one of the articles from the new volume, let me know and I may be able to get you a copy.

Military justice practitioners will also be interested in Professor Hillman's new article in the University of Minnesota Law School's Law and Inequality: A Journal of Theory and Practice. Elizabeth L. Hillman, Gentlemen Under Fire: The U.S. Military and "Conduct Unbecoming," 26 Law & Ineq. J. 1 (2008).


Anonymous said...

How many mental retards are in the military? And how many of these mental retards in the military have committed capital murder?

I say we tighten up those ASVABs.

Anonymous said...

Does anyone know why the CAAF site has been down for weeks now? I would really like access to the new decisions.

Anonymous said...

Anon 1,

Are you in the military? "Mental retards"?

Anon 2,

Project Outreach is eating up so much of the budget that CAAF had to make some cuts - the website was the first to go.

Anonymous said...


I'm Anon 1. Yes, I'm in the military. Thank you for the correction. But please don't spill your latte. While I should have said "Mentally Retarded Persons," you remind me of the yuppies who wince at the term "queer" for homosexual, when nowadays the term is not uncommon (i.e., queer studies). The point being that you shouldn't try to read people's minds or motives by the terms they use.

So now that we have squared-away our nomenclature, the military may resume its sophisticated practices and political correctness by affording these "persons" the dignity they deserve and executing them. But as long as the executioner uses the term "person," we can all smugly agree.

Anonymous said...

Anon 1,

Black coffee only for me. It's not about political correctness. It's about human decency and common courtesy. You'd probably understand if you had a family member with such a problem. And, your hyperbole and the pros/cons of the military death penalty aside, I'd expect that those individuals tasked with carrying out an execution conduct themselves with a heightened sense of dignity and professionalism.

Anonymous said...

ah, ironically ANON 1's incorrect "nomenclature" of mental retardation would probably save those convicted of capital murder from the executioner. PC or not, you may want to try a third time to state your point.

Anonymous said...


You're penny wise and pound foolish. I AGREE with you that I should have said "person." But my major point is that its not as big a deal as how we ultimately treat those people.

I changed the subject a bit to "homosexual" vs. "queer" to point out that you may think its perfectly fine to exclude "homosexuals" from the military and be self-satisfied that you are using the proper term when doing so. But what if I use the term "queer" - but happen to believe they should be afforded their right to serve? So - put that consideration into your "family member" argument. If you had a family member who was queer, would you rather he or she be given substantive rights or called the right names?

Returning to the subject at hand: Would you rather have a politically incorrect CA, for example, who refuses to seek the death penalty against a "mental retard," or would you rather have the CA be a scrupulously correct officer who seeks the death penalty against that "mentally retarded person"?

I guess you would have to be in THAT servicemember's family to understand the point that I am making: don't try to guess people's minds or motives by the labels they use.

My point on the ASVAB is semi-serious one. Since all servicemembers must take the test - what score could reasonably be construed as consistent with mental retardation?

Anonymous said...

I forget--what was the subject of COL Sullivan's original posting? This discussion seems to have diverged from his original intent.

egn said...

As it happens, there is one Marine on death row whose mental capacity has raised the question of how to apply Atkins v. Virginia in the military. See Parker v. United States, 60 M.J. 446 (2005)(order) and United States v. Parker, 65 M.J. 626 (N-M.Ct.Crim.App. 2007).

I suspect that may be the case that inspired LT Hudson's article (she is the appellate government counsel listed in the second cited opinion). And without having read the article, I daresay that military courts are continuing to struggle with the issue.

Disclaimer: I represented LCpl Parker in the earlier stages of his appeal, including raising the issue of his mental capacity in light of Atkins.