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Research & Litigation

Movies and Court Martials

In Custodia Legis - Mon, 07/21/2014 - 1:58pm

Snapped during the Col. Mitchell court martial proceedings today – Col. Sherman Moreland, judge advocate, and Lt. Col. Joseph I. McMullen, ass’t. judge advocate (Oct. 28, 1925), Library of Congress Prints and Photographs Division, http://hdl.loc.gov/loc.pnp/cph.3c33701

Home with a cold this spring, I was re-reading a mystery novel which centered in part around the fate of a British officer in World War I.  In the novel, the officer had been executed for cowardice which made me begin to think about movies which portray incidents of military justice.  Although fellow staff members suggested a wide array of possible movies, I decided to focus on three movies that looked at military justice as they depict different aspects of the procedures.  Spoiler alert – I have not included A Few Good Men as it has already been widely reviewed and discussed.

Jim Martin suggested Stanley Kubrick’s 1957 “Paths of Glory” which is based on real events in France during World War I.  I turned to my colleague Nicolas Boring, our expert in  French law, for explication on the movie and  French military law.  As it turns out,this is one of Nicholas’ favorite movies of all times and he has provided a discussion of the movie for this post.

The movie, based on a 1935 novel by Humphrey Cobb, tells the story of three soldiers, chosen at random, who are tried and executed for “cowardice” following a failed attack.  The charges are completely unfair, of course, and the soldiers are merely scapegoats for the incompetence of a general who ordered the suicidal attack purely for the purpose of advancing his own career.  The main character in this story is the soldiers’ commanding officer, Colonel Dax, portrayed by Kirk Douglas, who takes on his soldiers’ defense during the court martial.  Dax, who was an attorney before the war, tries his best to get the three men acquitted and to place the responsibility for the fiasco on the shoulders of the general who ordered the attack, but the entire system is stacked against his men.

This story was loosely based on real events.  Almost all of the belligerent armies of World War I executed soldiers for acts of desertion, abandoning their posts, refusal to obey orders, self-mutilations, and similar offenses.  Yet these executions left a very deep cultural mark, particularly in France and in the United Kingdom.  The reason seems to be that many of these executions were deeply unfair – the result of sham trials, arbitrariness, scapegoating – and perfectly symbolized the disregard that the general staffs were perceived to have towards the “cannon fodder” troops.  The website of the French Centre national de documentation pédagogique (National Center for Educational Documentation) has an excellent paper, Pour mémoire: les fusillés de la Grande Guerre about  French soldiers executed during the Great War, including those on whom the movie was based.  For a more historical account of the topic, Peter Judson Richards’ Extraordinary Justice  contains a chapter on French military justice during World War I.  Shot at Dawn, by Julian Putkowski and Julian Sykes discusses similar executions in the British army.  Finally, for those who can read French Nicolas Offenstadt’s Les fusillés de la Grande Guerre et la mémoire collective, 1914-1919 and General André Bach’s Fusillés pour l’exemple provides additional information on military justice during World War I.

Breaker Morant concerns the court martial of three Australian soldiers during the Boer Wars (1899-1902).  Although the Boer Wars are little known today, the movie has captured attention through its compelling depiction of a court martial towards the end of the conflict.  The movie depicts the court martial of three Australian soldiers, Lieutenants Morant, Hancock and Witton, who are accused of killing seven Boer prisoners and a German  missionary.  They are represented at the trial by Major Thomas who is at the least underprepared, and possibly inexperienced.  Looking at the film I became curious about the British court martial system.  The British National Archives website provides information about the British court martial system.  It appears there were four types of court martials: the General court martial; the Field general court martial; the General regimental court martial; and the Regimental court martial.  The General court martial was the army’s highest tribunal, and heard all cases for commissioned officers and “the most serious cases” for the other ranks.  When in this court was convened “at home” at least 13 commissioned officers had to hear the case, but when the case was brought in the British colonies then only 5 officers were needed to make up the tribunal.  I had assumed that Lt. Morant and the others had come before a Field general court martial which only required three officers and was generally restricted to wartime but the movie shows 5 officers sitting over the hearing.

The final climax of the movie is Major Thomas’ summing up speech to the court which both charges the army with  hypocrisy and argues that war changes men, stating that: “the barbarities of war are committed by normal men in abnormal circumstances who cannot be judged by civilian rules.”  The movie also depicts the English high command as being complicit in organizing the court martial as a show trial to demonstrate to the Boers that the British will discipline their own, up to and including the execution of soldiers who were arguably obeying the rules laid out by their commanders.

The last movie is Time Limit which takes place during the Korean War.  Richard Widmark plays an Army colonel, William Edwards. who has been assigned to investigate charges against Major Harry Cargill, played by Richard Basehart.  This movie does not portray a court martial but rather looks at the investigation which proceeds the decision as to whether  or not a court martial should be convened.  As the movie unfolds, it seems clear that Major Cargill did indeed cooperate with the enemy while he was a POW in North Korea.  This charge is a court martial offense under Article 104 of the Uniform Code of Military Justice (UCMJ).  Although Cargill simply wants to admit his guilt, be tried and sentenced, Widmark’s character insists on following the rules.  He cautions the major about his rights under Section 31 of the Uniform Code of Military Justice.  This section as it appeared in 1957 states in part:

No person subject to this chapter may compel any person to incriminate himself or to answer any question the answer to which may tend to incriminate him.  (b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

Colonel Edwards’ investigation eventually establishes the Major Cargill’s guilt but along the way uncovers other information regarding the situation in the prison camp, including the breakdown of a general’s son, and the movie ends with Edwards’ vowing to mount a proper defense for Cargill’s trial.  This is important because under article 104 of the UCMJ (also found at 10 U.S.C. 904), carries a possible death sentence.  This movie also questions various presumptions about war and the conduct of the a soldier.  Towards the end of the film Cargill makes an impassioned speech, asking how a man should be judged – on his last act or his acts over his lifetime.

All three of these films raise complex questions about how actions taken by soldiers in wartime should be judged.  None of the films offer simple formulas as answers and all three depict, to some extent, both sides of the question.  Movies are made to entertain, but they can also help us think about issues outside of our day to day routines.

Categories: Research & Litigation

Criminal model jury instructions update

Massachsuetts Trial Court Law Library - Sun, 07/20/2014 - 7:30am
  On May 30, 2014 the District Court release six new jury instructions and revised eight others. The new instructions are:  (1) Failure to have ignition interlock device; (2) Disabling an ignition interlock device; (3) Willful interference with a fire fighting operation; (4) Cruelty to animals; (5) Furnishing alcohol to a minor; (6) Improper storage of a firearm. One can see all the instructions online here, or one can borrow the MCLE book, Criminal model jury Instructions in the District Court from any Trial Court Law Library.
Categories: Research & Litigation

Summer Food Service Program Provides Free Food for Low Income Children

Massachsuetts Trial Court Law Library - Sat, 07/19/2014 - 9:00am
Thanks to the Federally Funded Food Service Program, over 900 Massachusetts organizations around the state have joined the cause to distribute free food to eligible children ages 18 and under. There are camps, libraries, housing complexes, etc. that provide up to two nutritious meals a day. To find distribution locations and times click on the following link: http://meals4kids.org/downloadable-site-lists   For more information, take a look at the Massachusetts Department of Education page: http://www.doe.mass.edu/cnp/nprograms/sfsp/

  
Categories: Research & Litigation

Sarita Kenedy East Law Library, St. Mary’s University – Pic of the Week

In Custodia Legis - Fri, 07/18/2014 - 12:25pm

Earlier this week, during the American Association of Law Libraries annual conference in San Antonio, Texas, I visited the Sarita Kenedy East Law Library at St. Mary’s University School of Law.  Below are just a few of the pictures that I took while we were treated to a tour of the law library by librarian and associate professor Mike Martinez, Jr.  It is a very spacious library (everything’s bigger in Texas, right?) named for Sarita Kenedy East, a South Texas rancher and philanthropist whose foundation provided funding for the construction of the building in the early 1980s.

In addition to looking around the processing areas, stacks, and study rooms, we were able to enter the lovely Rare Book Room, where valuable books on Texas law, Mexican law, and other works from different parts of the world are stored and displayed (along with a “stately green granite top table”).  In this room we had a chance to see the first law books of Texas following its becoming a state in late 1845, among other items.

The Sarita Kenedy East Law Library is a member of the Federal Depository Library Program (we’ve written about a couple other FDLP libraries previously).

Categories: Research & Litigation

School Discipline Law Has Changed Over the Summer

Massachsuetts Trial Court Law Library - Fri, 07/18/2014 - 8:00am
Our brand new Massachusetts Law About Student Discipline webpage brings together information about the laws and regulations that all public, charter and virtual schools must implement after July 1, 2014.  These changes result from the passage of Ch. 222 of the Acts of 2012, "An Act Relevant to student access to Educational Services and Exclusion from School."

Massachusetts Continuing Legal Education is offering a seminar to familiarize interested parties about the changes as the new school year approaches.  The announcement for this seminar summarizes the main features of the new discipline environment.

Categories: Research & Litigation

Probate Court Issues Revised Procedures and Forms for Health Care Proxy Disputes

Massachsuetts Trial Court Law Library - Thu, 07/17/2014 - 8:00am
The Probate and Family Court has released new procedures and forms for health care proxy disputes.  Under Massachusetts General Laws chapter 201D, section 17, an action can be filed to remove a health care agent, to determine the validity of a health care proxy, or to override a health care agent's decision about health care treatment.  A document entitled "Procedure for Actions Filed under G.L. c. 201D" (MPC 956) explains what forms are necessary, where to file, filing fees, whether counsel is appointed, notice requirements, and what happens at the hearing.
Categories: Research & Litigation

An Interview with Jessica Ho-Wo-Cheong, Global Legal Research Intern

In Custodia Legis - Wed, 07/16/2014 - 4:13pm

Today’s interview is with Jessica Ho-Wo-Cheong, an intern with the Global Legal Research Directorate’s Foreign, Comparative, and International Division I.

Jessica Ho-Wo-Cheong, Law Library intern

Describe your background.

I am a proud Canadian, born and raised in Montreal, Quebec.  I just graduated from l’Université de Montreal with a civil law degree.  Beforehand I completed my undergraduate degree at McGill University, Honors Sociology with a minor in Politics, Law and Society.  In August I will be completing my common law degree at Osgoode Hall, York University.  I am also passionate about traveling and have been fortunate enough to participate in exchanges at Sciences Po Aix-en-Provence (in France) and the University of Kent (in England).

Throughout the past few years, I have worked in different spheres of the legal profession including: general counsel, arbitration, and academic research.  I have also volunteered at a legal aid clinic and as a judge of the International Court of Justice at a Model United Nations conference.  My favorite aspect of law is the fact that it demands constant learning and re-evaluation; new laws come into effect, different areas of law emerge and new important questions arise.

How would you describe your job to other people?

The Law Library of Congress provides legal research and reports to Congress pursuant to their requests, and it often entails some aspect of comparative law.   It also receives requests from other parts of the federal government, and from private patrons.  As an intern with the Global Legal Research Directorate, I conduct research and write reports in response to requests.  Under the supervision of Foreign Law Specialist Nicolas Boring, I cover not only Canadian law but also French civil law jurisdictions including countries such as Mali, Cameroon and Burundi.  Ultimately, I come into work every day ready to take on whatever task needs to be done!

Why did you want to work at the Law Library of Congress?

For any young lawyer, the opportunity to be surrounded by such an immense and vast collection is remarkable.  Not only is the collection impressive, but what is equally impressive is having the research information analysts, experts in their own field, able to help refine searches and find materials.  This collection, combined with the possibility of working with lawyers from across the globe, made me want to be a part of this remarkable team.

I also appreciate the public service aspect of working for government and being able to provide reference answers to citizens.  The ‘Ask a Librarian’ service is open to anyone, anytime, anywhere.  The range of questions we receive is quite astounding.  It is exciting to face a new challenge every day and constantly learn about legal traditions across the globe.

What is the most interesting fact you have learned about the Law Library of Congress?

The moment I entered the Law Library of Congress, I sensed the friendly and collaborative spirit that this department embodies.  This comes not only from having such a diverse range of ethnicities represented but also a commitment to producing a high standard of work.  I was amazed to learn about the entire process from receiving a question to submitting a response.  The foreign law specialists, information specialists, collections specialists, administrative staff, and editorial team all play an important role and are happy to support one another.  All of these steps ensure the accuracy, clarity and relevance of the work produced.

What’s something most of your co-workers do not know about you?

I have a basic understanding of Creole, and I am half African; my father is from a tiny island in the Indian Ocean called Mauritius.

Categories: Research & Litigation

Making Legislative Information Accessible, Discoverable and Usable

In Custodia Legis - Tue, 07/15/2014 - 9:43am

The following is a guest post by Noriko Ohtaki, who was a research fellow at the Law Library of Congress.  She previously blogged about Searching for Current Japanese Laws and Regulations.

G8 leaders signed the Open Data Charter on June 18, 2013.  Open Data is intended to make information resources accessible, discoverable, and usable electronically to the public, increase transparency about government activities, and empower people and businesses to fuel better outcomes in public services.

In an Open Data context, governments are required to publish their datasets in open and machine-readable formats which allows governments to increase their operational efficiencies by effective data management at each stage of its life cycle— creation, dissemination, access, use, preservation, and evaluation.  With the interoperability and openness, it also allows datasets to be re-used in innovative ways to create useful tools and products: for example, an application that alerts users to the latest subway conditions by adding real-time updates from commuters to the official transit data.

Before the Open Data Charter, the federal government had already made significant progress in improving its openness and efficiency with legislative information which is identified as high value data in the “Government Accountability and Democracy” section of the charter.  In 1993, Congress passed the GPO Electronic Information Access Enhancement Act (Public Law 103-40), which directed the Government Printing Office (GPO) to ensure online access to the Congressional Record, Federal Register, and other federal documents, and led to the launch of “GPO Access” in 1994.  THOMAS.gov was launched by the Library of Congress in 1995, under the direction of the 104th Congress to make federal legislative information freely available to the public. “House.gov” went online during the 104th Congress as well.

The continuous effort to provide better service has promoted accessibility and usability of legislative information. THOMAS.gov expanded the scope of its offering so that a wide range of information such as Bills, Resolutions, Activity in Congress, Congressional Record Schedules, Calendars, Committee Information, Presidential Nominations, and Treaties are available.  Congress.gov was launched in 2012 to replace THOMAS.gov with a system that includes platform mobility, comprehensive information retrieval, and user-friendly presentation. Two years earlier, in 2010, GPO Access was replaced by “FDsys” (Federal Digital System) which provides access to documents from three branches of the federal government online.

Since 1996 the Secretary of the Senate and the Clerk of the House have worked together with the Library of Congress, GPO, Congressional Budget Office (CBO) and Government Accountability Office (GAO) to establish common data standards for the exchange of legislative documents.  After the adoption of the eXtensible Markup Language (XML)  as a primary standard in 2000, they have created common Document Type Definitions (DTD) for Bills, Roll Call Votes, Committee Report, and more through the Legislative Branch XML Working Group.

XML is an open and world wide data standard designed to transport and store data. It is a simple, very flexible and machine-readable text format; it ensures interoperability between systems; and numerous tools and applications have been developed for it and are widely available. A DTD defines the legal building blocks of an XML document. It defines the document structure with a list of legal elements and attributes.  Adopting XML with a common DTD enables organizations to exchange, use and reuse each other’s data more efficiently.

In a legislative process generally, many different offices produce and use legislative data. One office’s data is often closely related to another office’s data, and they all need to use and reuse each other’s data. The XML standard would help them streamline their job.  In addition, storing data in XML allows machines to recognize and process the data, because of the description to identify the nature of each piece of information in XML. It is quite different from simply labeling the information in PDF. The more the data becomes machine processable, the more routine tasks could be automated by well-designed software programs.

The House and the Senate started the project to draft bills in XML in 2001.  The first bills in XML based on the common DTD were published online in 2004 through Thomas.gov.  As an ongoing project, the Office of Law Revision Council (OLRC) released the United States Code in XML in July 2013.  OLRC also provides the United States Legislative Markup (USLM) schema and its user guide for enabling the public to reuse data.  We can find examples of reusing legislative information in helping organize lists of citations in bills, in tracking references to United States Code sections and providing headings and information from the Code sections, and more.  USLM schema is also designed to be consistent with the international effort called Akoma Ntoso to the extent practicable.

Akoma Ntoso (“linked hearts” in Akan language of West Africa) was first launched in 2005 as a part of the project “Strengthening Parliaments’ Information System In Africa” promoted by the United Nations Department for Economics and Social Affairs (UNDESA).  It is a set of simple, technology-neutral XML descriptions of parliamentary, legislative and judiciary documents to support the creation of high-value parliamentary and legislative information services that greatly improve efficiency and accountability in the parliamentary institutions.

Akoma Ntoso contains both structural and semantic components. Structural markup refers to the categorizing of different parts of a text based on their role in organizing the document (e.g., sections and clauses, preambles and attachments, headings and bodies, etc.), and semantic markup refers to the categorizing of different parts of a text based on their meaning with regard to the topic of the document (e.g., provisions, definitions, reference, names, dates, places, etc.). It enables an exchange and comparison of the legislative data even in different languages.

Akoma Ntoso has been adopted not only by African countries but also the European Parliament (bills and amendments at AT4AM for All), Italian Senate (bill publication in open data ), Brazilian Senate (act, bill, consolidation, point-in-time), Hong Kong City State (XML standard for document management).  The Library of Congress announced two data challenges in 2013, Markup of US Legislation in Akoma Ntoso and Legislative XML Data Mapping, to help advance the development of international exchange standards for legislative data and identify potential gaps in the Akoma Ntoso schema with respect to US and UK legislation. In addition, there is the LIME Editor, an open source, web-based editor, developed by the University of Bologna to allow for the quick conversion of non-structured legal documents into XML, including Akoma Ntoso XML.  In 2013, Akoma Ntoso Version 3.0 was released and approved by OASIS LegalDocML Technical Committee as an OASIS Standard for parliamentary, legislative and judiciary documents.

In many countries, legislative documents are one of the most traditional documents and the legislative process remains constant for long time. Even so, processes and procedures that support the legislative cycle can evolve to take advantage of new technology. Change would be hard and needs time, but it is still worth promoting.

Categories: Research & Litigation

2014 Statewide Ballot Questions

Massachsuetts Trial Court Law Library - Mon, 07/14/2014 - 8:00am
The following ballot questions will appear on the November 4, 2014 state election ballot.  A summary of each has been provided by Secretary of the Commonwealth William F. Galvin.

Question 1:  Eliminating Gas Tax Indexing

Question 2:  Expanding the Beverage Container Deposit Law

Question 3:  Expanding Prohibitions on Gaming

Question 4:  Earned Sick Time for Employees

A guide to ballot petitions and voting statistics on ballot measures since 1919 can be found on the Secretary's website here



Categories: Research & Litigation

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