By John M. Donnelly

Posted May 26, 2020 at 9:00am

It happened almost four years ago, but the pain for Adrian Perry was still brutal last week as she spoke through tears on the phone about how her young daughters had been sexually abused.

It is a personal story that dramatizes a policy debate.

The abuse had happened in the summer of 2016, at Camp Lejeune in North Carolina, when her twin girls had just turned 6 and an older daughter was 10.

Her husband’s former boss, Marine Corps Col. Daniel Wilson, had abused the twins, with one of the girls victimized on multiple occasions, Perry said.

It had happened during several of the periodic visits Perry and her girls paid to the home of Wilson and his wife. Perry found out about it later, she said, from her kids.

Wilson, it turned out, had digitally penetrated one of the twins and had licked and spanked both of them while Perry was in another room. He had offered alcohol, which he called his “apple juice,” to all three children, she said.

“Finding out our daughter’s innocence was stolen from her at 6 years old was one of those things that knocks you off your feet,” she said. “It knocks the wind out of you.”

Making the case more perverse, she said, was that Wilson had been something of a mentor to her husband.

“How do you ever trust after that?” she asked.

Wilson was charged with raping a child, abusing a child and other allegations, including that he sexually assaulted a woman in an unrelated incident.

He was convicted in 2017 of the child sexual abuse charge, conduct unbecoming an officer and being absent without leave.

However, last July, after Wilson had served roughly two years of a five-year prison term, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals reversed the child abuse conviction. The appellate judges cited “inconsistencies” they said they found reading a transcript of one of the twin girls’ testimony.

“It was like we had been sent backwards in our healing,” recalled Perry, who is now an advocate for abuse victims.

Attempts to reach Wilson’s attorney were not immediately successful.

‘Factual sufficiency’

Wilson’s case has gotten considerable attention, especially in the military press. But it is particularly relevant now to a congressional debate that will heat up in a few weeks, when the Armed Services committees write their fiscal 2021 defense authorization bill, the NDAA.

The appellate panel in the Perry family’s case had no choice, under military rules, but to essentially hold a second trial and re-litigate the evidence.

This requirement applies to the criminal appeals courts of the Army, Air Force, Navy-Marine Corps and Coast Guard. They must review not just the legalities of their cases — whether evidence was admitted properly and the like — but also the “factual sufficiency” of lower court decisions.

Civilian appellate courts are typically looking out for egregious factual errors or lack of evidence when they review lower court rulings, legal experts say. They are not asking anew, as military appellate courts are, whether the person is guilty beyond a reasonable doubt, with only slight deference to the lower court’s work.

This approach is virtually unique to the military appellate system, experts said.

“The military system is remarkably different, but not in a way that advances the cause of justice,” said Mary Rose Hughes, an attorney in private practice who represents military sexual assault victims on a pro bono basis.

A gavel sits on a table in a courtroom at McConnell Air Force Base, Kan. The Air Force has failed to implement reforms to fix racial disparities within its military justice system, military law watchdog group Protect Our Defenders said in a report released Wednesday.

By JOHN VANDIVER | STARS AND STRIPESPublished: May 27, 2020

The Air Force has failed to make reforms to fix racial disparities within its justice system and withheld documents to hide its “abysmal record,” a watchdog group said.

“The Air Force has concealed records and discredited its own statistics, with leadership later doubting that disparities were as severe as their own data reveals, contrary to conclusions reached by (government and independent) investigations,” Protect Our Defenders said Wednesday in a report on racial disparities in military justice.

In 2017, the group published a report that found racial inequalities across the military justice system, with the Air Force cited as having some of the most extreme discrepancies.

In the Air Force, black airmen on average were 71% more likely to face court-martial or nonjudicial punishment than their white counterparts, according to the group’s investigation at the time.

“Four years after the Air Force admitted the need to examine racial disparities, no recommendations have been formally made nor have any changes been implemented,” the report said.

Protect Our Defenders is led by retired Col. Don Christensen, a former chief prosecutor for the Air Force.

In 2019, the Government Accountability Office launched its own probe, which found that in the Army, Navy, Marine Corps and Air Force, black, Hispanic and male service members were more likely to be investigated than white and female service members.

Air Force leadership, at the Air Force Association’s Air and Space Conference and Technology Exhibition in September 2015 in Washington. The service hasn’t made reforms to fix racial disparities within its justice system, military law watchdog group Protect Our Defenders said in a report released Wednesday.
SCOTT M. ASH/U.S. AIR FORCE

They were also more likely to be tried in general and special courts-martial, the GAO found in an analysis based on data from 2013 to 2017. However, the GAO found no statistically significant difference by sex or ethnicity in terms of convictions.

The investigations prompted Congress in December to order that services track race and ethnicity within the justice system in an effort to root out unfairness.

The latest Protect our Defenders report said the Air Force has failed to take significant action and that a “racial disparity team” established to deal with the issue was window dressing.

“A three-year effort by POD found that the creation of the disparity team appeared to be an attempt to deflect from the Air Force’s abysmal record,” the group said.

The Air Force said Wednesday it is trying to address the problem.

“While we have taken steps to elevate unconscious bias training at all levels of our command structure, we have more work to do to identify and remove barriers that stand in the way of our people’s success,” said Air Force spokeswoman Ann Stefanek in a statement.

In 2017, the Air Force implemented various initiatives to raise awareness about “unconscious bias,” Stefanak said. And in 2019, the Air Force added additional training and mentorship programs to help airman “adapt to military culture.”

Documents obtained earlier this year after a series of court fights showed that the Air Force acknowledged a “persistent” and “consistent” racial disparity in military justice, but did nothing about it, the report said.

“We recognize there is still work to do in this area,” an Air Force working group said in a talking point slide the service was court-ordered to release, according to the report.

Another slide stated more focus and action on the issue is needed during investigations that “are happening prior to Airmen entering into the Article 15 and Court Martial processes.”

“Strenuous review needs to take place to truly measure how different demographics of Airmen are receiving punishments/corrective actions prior to legal infractions occurring,” the slide stated. “One of the most important questions that we must be able to answer in the affirmative is: Are we being equitable and consistent with, and for, all Airmen at all points through these disciplinary processes?”

The slides were undated but the report stated they were made in 2017.

Documents also showed the Air Force working group only met for 90 days, kept few official records, made superficial recommendations and never formally briefed senior leaders, the report said.

“Instead, the service engaged in a multi-year effort to keep the findings and recommendations from the working group hidden,” the report said. “It remains to be asked why the Air Force fought so hard to keep the information from the public, and at what level were those efforts being directed.”

The report recommended that Congress hold annual hearings on racial disparity in the military justice system as a means for holding the service branches accountable.

“The military should not be able to keep information from the public simply because it is embarrassing or exposes systemic failures,” it said.

Pattern Cross-Examination of Expert Witnesses: A Trial Strategy & Resource GuideIn a criminal trial, cross-examination of the prosecution’s forensic expert may make the difference between victory or defeat. More and more, aggressive prosecutors are relying on forensic psychiatrists, toxicologists, and other experts to help obtain convictions. Some expert witnesses will do whatever it takes, including misapplying scientific research to bolster the prosecution’s case. For the sake of justice, defense lawyers must be able to cross-examine and nullify forensic experts effectively.

In the second Bill Cosby trial and Harvey Weinstein’s New York trial, both sides prominently used forensic experts. In these cases, counterintuitive victim behavior experts played a vital role in the prosecution’s trial strategy. This book will help defense lawyers neutralize such experts.

BOOK REVIEWS

Pattern Cross-Examination of Experts is an easy-to-follow, practical guide to arm the advocate against an often intimidating adversary-the opposing expert. This inspired and meticulously crafted how-to guide more than levels the playing field by presenting an easy and consistent path to an effective dismantling of the expert’s opinion in virtually every context.” 
Jacquie Goodman, Law Offices of Jacqueline Goodman (Fullerton, CA)
“The power of the techniques in this book are exceeded only by the voluminous examples of succinct questions on just about every key topic you will encounter in trial. This is a step-by-step playbook to effective lawyering when you are in battle.”
Brian Bieber, GrayRobinson Attorneys at Law  (Miami, FL)
“Michael Waddington and Alexandra González-Waddington have done the criminal defense bar a favor by composing required reading and resource material for young and experienced trial lawyers alike. This comprehensive book belongs on the bookshelf of all criminal defense practitioners.”  
Drew  Findling, Findling Law Firm  (Atlanta, GA)

NACDL’s Pattern Cross-Examination of Expert Witnesses will assist criminal defense practitioners in scoring points when cross-examining forensic experts. This resource contains thousands of questions that will help defense lawyers cross-examine challenging witnesses, using scientific research, without having to reinvent the wheel with each new case. It contains pattern questions that can be used to dominate prosecution experts and level the playing field at trial, and the sample cross-examination questions can be easily modified and used in a variety of cases. The questions provided serve as a starting point. Because every case is different, the cross-examiner should modify the questions based on the facts of their case. This Trial Guide is not a textbook on the theories of cross-examination. Instead, it provides sample questions based on fact patterns commonly encountered when dealing with forensic experts in a variety of trials.

There are hundreds of citations included for scientific research, so lawyers can readily impeach opposing experts using the learned treatise exception.

View Sample Pages Here: https://bit.ly/2WcjohZ

This book will assist in the cross-examination of:

  • forensic psychiatrists/psychologists;
  • forensic toxicologists;
  • strangulation experts;
  • law enforcement;
  • social workers;
  • as well as experts in child abuse, assault, and sex crimes.

Includes Chapters on:

CHAPTER 1: Dealing With Hostile Witnesses

CHAPTER 2: Counterintuitive Victim Behavior

CHAPTER 3: Alcohol: Memory & Consent

CHAPTER 4: Memory & Perception

CHAPTER 5: False Confessions

CHAPTER 6: Child Memory

CHAPTER 7: Confabulation (Memory Error)

CHAPTER 8: False Allegations of Sexual Assault

CHAPTER 9: Borderline Personality Disorder

CHAPTER 10: Strangulation

CHAPTER 11: Bruising & Dating Bruises

CHAPTER 12: Cognitive Dissonance & Sexual Assault

About the Authors:

Michael Waddington is a criminal defense lawyer who has successfully defended cases in courtrooms around the world, including Japan, South Korea, Germany, Iraq, Bahrain, Italy, England, and across the United States. He has been involved in some of the highest profile court martial cases resulting from the “War on Terror” to the “War on Sexual Assault,” and has been reported on and quoted by hundreds of major media sources worldwide.

Mr. Waddington is the author is the book Kick-Ass Closings: A Guide to Giving the Best Closing Argument of Your Life. He is co-author of the book, Pattern Cross-Examination for Sexual Assault Cases: A Trial Strategy & Resource Guide, published by the National Association of Criminal Defense Lawyers (NACDL). He also authored the Amazon bestseller, The Art of Trial Warfare: Winning at Trial Using Sun Tzu’s The Art of War.

He has provided consultation services to CNN, 60 Minutes, ABC Nightline, the BBC, CBS, and the Golden Globe winning TV series, The Good Wife. He appeared in a major CNN documentary, Killings at the Canal, and some of his cases have been the subjects of books and movies, including the Academy Award-winning documentary, Taxi to the Dark Side, the 2013 documentary, The Kill Team, and the books The “Good Soldier” on Trial, and Brian De Palma’s Redacted.

Since 2013, Mr. Waddington has been an annual contributor to the American Bar Association’s publication, The State of Criminal Justice. He is a Life Member of the NACDL and a Fellow of the American Board of Criminal Lawyers (ABCL).

Alexandra González-Waddington is a founding partner of the González & Waddington Law Firm, and a Georgia Registered mediator. She has represented and defended hundreds of defendants charged with sexual crimes and has worked on some of the most notorious war crime cases stemming from the Iraq and Afghanistan wars. A former Public Defender in the State of Georgia, Alexandra has worked on various types of cases, including rapes, larcenies, and white-collar crimes. She graduated from Temple Beasley School of Law in Philadelphia, PA where she successfully completed Templeʼs Nationally ranked Integrated Trial Advocacy Program.

She is co-author of the book, Pattern Cross-Examination for Sexual Assault Cases: A Trial Strategy & Resource Guide, published by the National Association of Criminal Defense Lawyers (NACDL). From 2015 through 2020, she wrote chapters in the American Bar Association (ABA) books, The State of Criminal Justice. This annual publication examines major issues, trends and significant changes in the criminal justice system and is one of the cornerstones of the ABAʼs Criminal Justice Sectionʼs work. This publication serves as an invaluable resource for policy-makers, academics, and students of the criminal justice system.

Victims of physical or sexual assault should have better access to ...

“If you don’t have consent, you’re committing assault.”

By Thomas L. Knapp – 13 hrs ago.

“I FEAR that many Americans will resist getting vaccinated against the SARS-CoV-2 coronavirus,” Dr. Lauren S. Grossman writes at Stat. “To put this scourge behind us, I believe that our nation should, for the first time ever, require all Americans—or at least schoolchildren and workers in direct-contact jobs—to be vaccinated against this coronavirus.”

But Grossman’s prescription flies in the face of the World Medical Association’s International Code of Medical Ethics: “A Physician shall respect a competent patient’s right to accept or refuse treatment.”

It would also violate the American Medical Association’s Code of Medical Ethics. For example, “Informed consent to medical treatment is fundamental in both ethics and law” (Code of Medical Ethics Opinion 2.1.1) and “[r]espect for patient autonomy is central to professional ethics …” (Code of Medical Ethics Opinion 2.1.2).

And canons of medical ethics aside, it’s just plain wrong.

If you’re muttering under your breath that I’m an “anti-vaxxer,” you’re wrong.

I’m pro-vaccine. I’m glad I didn’t face the risks of measles, mumps, polio, etc. that previous generations (and my older siblings) faced. I get my flu shot every year. I’ve had my pneumonia vaccine. I’ll be getting my shingles vaccine Real Soon Now (I had chickenpox before that vaccine became available).

If there’s a reasonably safe and effective vaccine for something I’m vulnerable to, I want it.

In fact, I’ve probably had more vaccinations than you, if for no other reason than my shot record got lost between overseas military deployments. So I had to get a bunch of them an extra time.

I even got an anthrax vaccine right out of a tube marked “EXPERIMENTAL: DO NOT USE ON HUMANS” in Saudi Arabia in 1991. I objected to that one. I “consented” to the shot only after being threatened with court-martial if I didn’t.

Which brings me to my point:

Forcing a needle or a pill into someone’s body without that person’s consent is no different in principle than forcing a penis into someone’s body without that person’s consent.

It doesn’t matter how much more you think you know than the person whose consent you require, or how much more important you think your goals and priorities are than the goals and priorities of the person whose consent you require.

If you don’t have consent, you’re committing assault.

And the medical version of assault should trigger the same social, civil, and legal penalties as the sexual version.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org).

 

 

(File photo)

Military families know Memorial Day has a special purpose, but it’s a fact that many Americans see the long weekend as a time to celebrate. Too often, that celebration involves drinking and driving and results in traffic crashes and deaths.

Nationwide, Memorial Day weekend averages more than 300 fatal traffic crashes, the most among any major holiday weekend in the U.S., according to statistics from the National Traffic and Highway Safety Administration. The Missouri State Highway Patrol noted that during last year’s holiday weekend, 1,009 crashes occurred in the Show-Me State alone, which resulted in eight deaths, 433 injuries and 96 arrests of drivers suspected of driving while intoxicated.

“Too many people die in traffic crashes each year in Missouri,” Missouri State Highway Patrol Superintendent Col. Eric Olson said in a May 6 press release. “The choices you make when you’re behind the wheel matter. Make good choices, so you’ll never have to say, ‘if I could just go back.’”

Olsen also noted that the weekend is traditionally the unofficial start to boating season in the state, which saw seven boat crashes and 10 arrests for boating-while-intoxicated by the Missouri State Water Patrol in 2019.

COVID-19 precautions

This year, the patrol is urging motorists and boat operators to not only make good decisions behind the wheel but also take new safety precautions regarding COVID-19.

“(The patrol) recognizes Memorial Day weekend is highly anticipated, especially after these last few months,” Olsen said. “A safe, fun weekend starts with planning and good decisions. Please remember to observe social distancing and other (Centers for Disease Control and Prevention) guidelines, and stay home if you are ill. If your plans include driving or boating, choose to be courteous and obey all Missouri laws. Use a seat belt when you drive and wear a life jacket when you’re on or near the water. Always pay attention, whether you’re operating a vehicle or a vessel, and choose to be a sober driver on land and on the water.”

Know the consequences

For service members, civilian employees, contractors and family members, drinking and driving can have serious consequences regardless of whether an incident or arrest happens on post or outside the gate.

Under Fort Leonard Wood Regulation 190-5 (https://home.army.mil/wood/index.php/download_file/force/7530/937), on-post driving privileges can be immediately suspended for drivers found to have a blood-alcohol content of .08 percent when operating personal vehicles or .04 percent if operating a commercial vehicle on post — or for violating Missouri law, which has the same limits off post.

According to the U.S. Army Combat Readiness Center, service members can potentially face Article 15 penalties and may be tried by court-martial under the Uniform Code of Military Justice, the harshest penalties being the forfeiture of all pay and allowances, a dishonorable discharge and confinement. A DUI, defined as driving under the influence of drugs or other substances, can mean up to 6 months imprisonment, a $500 fine, court-ordered alcohol treatment and addiction programs and drivers-license forfeiture for 90 days for a first offense – up to 10 years for subsequent offenses.

In addition to the loss of actual freedom, DWI/DUI convictions can also include a loss of financial freedom. Court costs, attorney’s fees, increased insurance costs, bond payments and the license reinstatement process are expensive. According to highway-patrol statistics, the costs associated with a single conviction average nearly $3,000 in Missouri. USACRC officials estimate the total costs of a conviction to be between $5,000 and $20,000, depending on the location of the arrest and the circumstances involved.

On the ‘Web:

More information, statistics and tips to prevent drinking and driving are available on the following websites and online publications:

—USACRC home page: https://safety.army.mil/HOME.aspx

—Centers for Disease Control and Prevention: www.cdc.gov/vitalsigns/drinkinganddriving

—Missouri State Highway Patrol: http://www.mshp.dps.mo.gov/MSHPWeb/Publications/Brochures/documents/SHP-442a.pdf.