This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

In late summer 2014, my client and another were accused of conspiring with each other and committing sexual assaults on a single complaining witness.  The events were alleged to have happened at a party at a local hotel.  As the investigation progressed six others were implicated in an alleged group sexual assault.

My client and his alleged co-conspirator had charges preferred in January 2016 and in April they were arraigned at a general court-martial.  We then experienced many delays because of funding issues until trial in February 2018.  Over the months, the six others had their allegations resolved at summary court-martial, nonjudicial punishment, and administrative separation—all for offenses collateral to the alleged sexual assaults.

As our investigation and preparation progressed we were able to develop what we believed to be a motive to fabricate a false allegation of sexual assault, for what psychologists call secondary gain (to police and lawyers that’s called motive).  The complaining witness was in trouble: she’d lied to command personnel about where she was going that day, and like the eight accused’s she violated various rules of alcohol and fraternization–she and others were about to undergo a surprise breathalyzer that night.  Her answer was to claim sexual assault for what we believed to be consensual group sex.

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Let’s take a look at United States v. Criswell, a case decided by the Army adverse to the appellant, and now pending review at CAAF, on the following issue.

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

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We know that the Sixth Amendment right to confront witnesses does not apply at a sentencing hearing (although the Due Process Clause does).  Here we have a report of United States v. Carrillo, 2018 U.S. Dist. LEXIS 21731 (E.D. N.Y. Feb. 9, 2018), in which the judge held that the exclusionary rule does not apply at sentencing.  The district court judge cited to United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992).

When the Congress, the media, and commanders called for a crackdown on military sexual assaults, the fear among the defense bar was the specter of unlawful command influence.  Most of the cases have focussed on pretrial and post-trial.  But the biggest fear was realized in United States v. Schloff, a case I did at trial and on appeal.

“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . …. was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process. “

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In United States v. Sager, the accused was convicted of abusive sexual contact because the victim was “otherwise unaware” of the acts.  The Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence.  Appellant petitioned the CAAF.

This case is before us for a second time. The Court of Appeals for the Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s conviction for abusive sexual contact.2 At the heart of the appellate litigation in this case is a question over the interpretation of Article 120(b)(2), UCMJ, which proscribes sexual contact with people the accused knows, or reasonably should know, are incapable of consenting to the contact because they are “asleep, unconscious, or otherwise unaware” that the contact is occurring.  The unusual posture of this case after trial required us to decide whether the terms asleep, unconscious, and otherwise unaware represented distinct theories of criminal liability. In our first review of this case, we held that they do not. Rather, we held that the reasons for a victim’s lack of awareness, be it sleep, unconsciousness, or something else, were only relevant to whether the accused should have known that the victim was unaware of the contact.

The CAAF held that our interpretation was incorrect. Reversing this court, the CAAF held that “asleep, unconscious, or otherwise unaware” represents three separate theories of liability.  The CAAF also held that the term otherwise unaware means unaware in a manner different from both sleep and unconsciousness.

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In general a court-martial accused can waive most rights and privileges in a pretrial agreement.  A common term where there are multiple accuseds (drug or sexual assault cases for example) is an agreement to testify truthfully in another court-martial.  But,

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

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All current rape and serious sexual assault cases in England and Wales are to be reviewed “as a matter of urgency” to ensure evidence has been disclosed.

Director of Public Prosecutions Alison Saunders warned the review could see “a number of cases” dropped.

It comes after the collapse of several rape trials because evidence had not been shared with defence lawyers.

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I’m used to having some media interest in my cases or being asked to comment on someone else’s.  With that in mind, I try hard to be careful on staying within bounds of what can be said or which can but shouldn’t.

The 48th Criminal Law Seminar for VACLE has this module.

Trial Publicity, Social Media, and Case Commentary: Can Litigating in the Court of Public Opinion Get Lawyers into Trouble?

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[V]iolations of Brady are the most recurring and pervasive of all constitutional procedural violations, with disastrous consequences: innocent people are wrongfully convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful legal and ethical enforcement and accountability has a corrosive effect on the public’s perception of a justice system that often appears to be arbitrary, unjust, and simply unreliable.

Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 13, 15 (2007).