This week we received the decision of the Army Court of Criminal Appeals of a client accused of homosexual sexual assaults.
He had been convicted and sentenced to 14 years of confinement.
We raised many issues during his appeal. The Army Court found a serious error by the military judge in denying the defense presenting evidence of other sexual acts of the alleged victim. This issue usually comes up in a Military Rule of Evidence 412 motion. Here, the military judge botched it.
Basically the rule prohibits witnesses or cross-examination about prior sexual behavior of the alleged victim. However, there are exceptions: (1) the evidence shows someone else did it or caused physical injuries. For example, consensual sex–any sexual penetration–can cause physical injury to the vagina, so the alleged victim having had sex with another person the day before the alleged assault could be admissible as an exception; (2) because the conduct is what is called res gestae (all part of the same acts or events); (3) when the Constitution requires it. For example, to present evidence of mistake of fact as to consent, or significant attacks on the credibility of the alleged victim. As military defense lawyers, we have a lot of experience litigating these issues and also have experts who can assist in presenting the case.
The Army court touched on other issues in connection with how the prosecutor and special victim’s counsel conducted the case.
Because the error was so prejudicial, the charges have been dismissed. The next step is whether the prosecution will appeal or whether there will be a new trial.
Retrials are difficult. As military defense counsel, we have done retrials. All the prior discovery, evidence, and witnesses have to be gathered up so that both sides can prepare for trial. Because retrials are difficult, the Army has created a specialized organization at Fort Leavenworth to work on these cases.