NMCCA sets aside a Article 120 case for instructional error

In the United States v. Jones the facts cited by the court show a consent defense.  However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one.  There being no evidence of an affirmative waiver the findings and sentence were set aside.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999).

We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony.  As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor.

While trial defense counsel failed to request, remind or insist upon an instruction relative to the affirmative defense of consent, it was not his burden to do so. Rather, it was the sua
sponte duty of the military judge. United States v. Guitierrez, 64 M.J. 374, 376 (C.A.A.F. 2007)[.]

What should a trial counsel do if the military judge doesn’t say she will instruct on an affirmative defense and the defense counsel doesn’t ask for it, but the trial counsel believes the evidence raises the affirmative defense?  Does the trial counsel have an obligation to raise the question at least?