On July 27, 2015, the Army Court of Criminal Appeals (ACCA) issued a ruling in United States v. Bridges, 74 M.J. 779 (2015) that reduced a panel’s sentence of 6 years to 4 years on account of an overzealous trial counsel that focused on the Accused’s prior acquittal that stemmed from a fifteen-year allegation of rape. In his sentencing argument, the military prosecutor emphasized that the Accused was “predisposed to sexual assault.” The learning point for military justice practitioners is to move “in limine” prior to the trial on the merits and again on sentencing to preclude such patently unfair arguments. The defense lawyer’s focus should specifically emphasize the poignant danger of unfair prejudice under Bridges and Military Rules of Evidence (MRE) 403. See, e.g., Military Justice Reporter dated September 15, 2015.
The Navy Appellate Court in United States v. Pease, 74 M.J. 763 (July 15, 2015) vacated two sexual assault convictions based upon an insufficiency of evidence. This case demonstrates, as is well known amongst the defense bar, that opting for a military jury (“panel”) to decide your client’s case in a “multiple alleged victim case” can be exceedingly risky. The evidence of alcohol impairment in this court-martial was weak and yet the Navy (enlisted) panel convicted and sentenced this Accused to serve six years in prison and a dishonorable discharge. This is yet another case of a complaining witness getting drunk and then deciding, after the fact, that they did not want sex. Professional kudos to Pease Court in correcting this miscarriage of justice.
On 18 June 2015, the Court of Appeals for the Armed Forces (CAAF), in United States v. Woods, 74 M.J. 238 (2015), vacated a court-martial conviction on account of a military judge’s denial of a “implied bias” challenge. In sum, a prospective jury (panel) member filled our her pretrial questionnaire, and chillingly wrote, in relevant part, “the enforcement of the you are guilty until prove innocent [standard] is essential because the military needs to be held to a higher standard for reasons of mission.” To make matters worse, this prospective juror was the senior member (highest ranking) on the jury. Defense counsel attempted to have her struck from the jury, prior to its convening, as part of the voir dire process, however the military judge shortsightedly denied the request. CAAF was sufficiently troubled by her statement that it reversed the conviction on “implied bias” grounds. The lesson learned is that military defense counsel should always carefully read those “panel member sheets” long before trial, and have Woods in the back pocket, ready to cite, should a similar off the wall statement be made.
Earlier this summer an U.S. Army Judge ruled that statements made by an alleged sexual assault victim to her victim advocate were discoverable on account of AR 600-20 provisions related to “unrestricted” complaints. Simply stated, in his learned view an “unrestricted” filing is akin to a waiver of any associated “victim advocate” privilege. Government prosecutors filed an appeal to preclude this discovery IAW MRE 514 (d)(6). On 11 June 2015, the U.S. Army Court of Criminal Appeals (ACCA) in Lippert, Powell est. 2015 CCA LEXIS 257 upheld the military judge’s ruling. The valuable lesson is this, if the complaining victim consults with a victim advocate, after having filed a “unrestricted report” the defense should now aggressively seek any and all related discovery regarding those previously “off limits” conversations.
The Navy appellate court recently issued a favorable defense ruling in United States v. DWB, 74 MJ 630 (2015) in which the court upheld the military judge’s decision to prevent an alleged victim from putting on mental health testimony regarding Eye Movement Desensitization and Reprocessing (EMDR) procedures. Military Defense Lawyers now have a great case to rely upon to pierce the MRE 513 privilege so long as one can reasonably show that the complaining witness underwent EMDR related treatments to assist in memory recall.
In a landmark opinion, the military’s highest court, U.S. Court of Appeals for the Armed Forces (CAAF), in United States v. Ali, 71 M.J. 256 (2012) held that non-United States citizens that “serve with” a U.S. military forces overseas are subject to trial by court-martial. In principle, CAAF’s opinion opens a potential means for the United States military apparatus to hold noncitizens accountable for committing crimes. In essence, CAAF held U.S. Constitutional protections, embodied in the Fifth and Sixth Amendments inapplicable to this body of persons. This case will no doubt be subjected to further judicial review, and may likely be argued before the U.S. Supreme Court, however, for now, the long arm jurisdiction of American military justice has caste itself around the globe, albeit only where our forces serve.
The Court of Appeals of the Armed Forces (CAAF) recently decided United States v. Morrissette, 70 MJ 431 (2012), which provides interesting insights into the dangers associated with grants of immunity. Simply stated, this case concerned an accused that was involved in the death of a Soldier; who was undergoing, at that time, a brutal initiation into the gang. The Government provided the accused “testimonial immunity” IAW RCM 704(a)(2). As a result, the accused had no choice but to make a statement to CID. In fact, he made four more written statements. The Government then withdrew the immunity and proceeded with the court-martial of the accused. CAAF held the follow-on prosecution was not unlawful because the Government did not benefit from the information learned from the previous immunized statements. Indeed, a second set of prosecutors, who were precluded from learning anything about the accused’s four statements, tried him. CAAF held the conviction lawful. Notably, CAAF did not care that a former member of the first prosecution team tangentially discussed the case, via email, with the second prosecution team’s staff judge advocate. The lesson to learn is to conduct vigorous discovery of “email” information when looking to pierce the “Chinese wall” to show your client is worse off as a direct result of the forced immunity arrangement.