Week in Review

United States Supreme Court

​Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021). ​Courtesy of John Wesley Hall @fourthamendment.com

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device.
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Lower courts recently have divided on how the privilege against selfincrimination applies to accessing encrypted digital evidence. The issue usually comes up when the police seize a computer or cell phone and have a warrant to search it for evidence. The police can’t execute the search, however, because the device is encrypted. Prosecutors get a court order compelling a suspect to unlock the device, either by disclosing the password or by entering it. The suspect then pleads the Fifth, forcing a court to determine whether entering or disclosing the password would force him to “be a witness against himself.” The cases applying the Fifth Amendment to compelled decryption are all over the map. The confusion is understandable. Lower courts must follow Supreme Court precedent. But the Supreme Court’s cases in this area are notoriously difficult, and none of the cases involve facts that resemble compelled decryption. The lower court disagreement makes Supreme Court review highly likely. And the prospect of Supreme Court review introduces an important new question.

Supreme Court of South Carolina

For those of us doing court-room work, one of the first questions asked of us is, "will I have to register?" In South Carolina the answer remains, "likely." But for how long is discussed in Powell v. Keel, No. 28033 (S.C. June 9, 2021). 

Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending.  Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review.  Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry. 

Air Force Court of Criminal Appeals

United States v. Perez. The military judge accepted Appellant’s guilty plea to possession and use of cocaine and use of methamphetamine. He was sentenced to 150 days confinement and forfeitures,  and a BCD. Case remanded because of missing parts to the stipulation.

United States v. Wilson, III. An enlisted panel convicted Appellant of premeditated murder and also of intentionally causing the death of an unborn child. He was sentenced to LWOP, a DD, TF, RIR to E-1, and a reprimand.
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Appellant raises 26 issues for our consideration on appeal:

(1) Legal and factual sufficien[cy].

(2) The "Spath Issue," failure to disclose [he was] isqualified by his undisclosed application for employment with the Executive Office of Immigration Review.

(3) Article 13, UCMJ credit for him being "placed him in maximum custody."

4) Denial "for cause against a court member."

5) Whether the military judge erred by excluding evidence of the victim’s “swinging” lifestyle.

(6) Whether the military judge erred by failing to reconsider his ruling with respect to evidence of the victim’s “swinging lifestyle.”

(7) IAC "for failing to renew their request to admit evidence of the victim’s “swinging lifestyle.”

(8) Suppress[ion] of evidence from the search of Appellant’s home.

(9) Error in allowing "evidence of an Internal Revenue Service (IRS) deficiency against Appellant."

(10) Error to admit "a post-mortem paternity test indicating Appellant was the probable father of the victim’s unborn child;

(11) Error in "by failing to suppress a letter allegedly sent by Appellant while he was in pretrial confinement."

(12) {E}rroneous findings instructions.

(13) Whether the Government’s sentencing argument was improper.

(14) Whether the confinement order erroneously omits Appellant’s 1,271 days of confinement credit for his pretrial confinement;

(15) Whether Appellant is entitled to sentence relief for unreasonable post-trial delay.

(16) Whether the Government improperly interfadmitered with Appellant’s attorney-client relationships.

(17) whether the Government improperly denied Appellant’s individual military defense counsel (IMDC) request.

(18) Whether the military judge erred by allowing the Government to introduce improper evidence under Military Rule of Evidence 404(b).

(19) Whether the military judge erred by allowing a hearsay statement by the victim that she purchased a firearm for Appellant.

(20) Whether trial defense counsel were ineffective for failing to request an expert in geology.

(21) Whether the military judge erred by failing to grant a mistrial due to a government discovery violation.

(22) Whether the Government improperly shifted the burden of proof during findings argument.

(23) Whether the military judge erred by failing to rule on the Defense’s motion to remove the mandatory minimum sentence of confinement for life for violation of the Article 55, UCMJ, 10 U.S.C. § 855, which prohibits cruel or unusual punishments.

(24) Whether the Government failed to provide Appellant the opportunity to respond to “new matter” in the addendum to the staff judge advocate’s recommendation (SJAR) to the convening authority.

(25) Whether the convening authority failed to meaningfully consider Appellant’s clemency submission.

(26) Whether the cumulative effect of errors in Appellant’s case denied him a fair trial.

Findings and sentence affirmed.

POTENTIAL APPELLATE CASE

United States v. PFC. He is accused of sexually assaulting XX in 2019 while she was unconscious. He is also accused of raping and groping other women on multiple occasions over the last four years. (Ed. note, oddly, the piece reports also the alleged victim's name, starting in the headline.)
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United States v. Perez, previously noted. He pleaded guilty to several specifications and was sentenced to 179 days, RIR to E-7, and a reprimand.

PENDING APPELLATE CASE

United States v. Cabuhat. A staff sergeant has been sentenced to 30 years confinement "for crimes including sexually abusing a child, wrongfully photographing the child, and viewing and possessing child pornography."

NOT PENDING APPELLATE CASE

An Air Force Academy major was acquitted of all charges in a court martial that ended Sunday, the Air Force Academy said. Maj. EC was charged with one specification of abusive sexual contact, one specification of abuse of training leadership position, and two specifications of dereliction of duty.