CAAF will hear oral argument in the Army case of United States v. McDonald, No. 18-0308/AR (CAAFlog case page), on Tuesday, February 19, 2019, at 9:30 a.m. The court granted review of the following issue about the minimum mens rea (mental state) necessary to commit the offense of sexual assault by causing bodily harm where the bodily harm is a nonconsensual sexual act:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Put differently, since nonconsensual sexual activity is generally considered to be the definition of sexual assault, the statute functionally prohibited sexual assault by causing sexual assault. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge doesn’t matter at all (strict liability). Accordingly, the mens rea applicable to the offense is an open question.

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing the issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

The facts of McDonald, however, present the possibility that CAAF won’t immediately resolve the split between the Army and Navy-Marine Corps CCA.

Read more »

Yesterday CAAF granted review in this Army case:

No. 19-0087/AR. U.S. v. Deontray D. Coleman. CCA 20170013. 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 granted on the following assigned issue:

WHETHER SPECIFICATION 1 OF CHARGE VII IS MULTIPLICIOUS WITH SPECIFICATION 1 OF CHARGE I, AS THEY ARE PART OF THE SAME TRANSACTION.

Briefs (on the issue of multiplicity and not unreasonable multiplication of charges) will be filed under C.A.A.F. R. 25.

The CCA’s opinion is available here but does not address the granted issue.

CAAF decided the certified Navy case of United States v. Cooper, __ M.J. __, No. 18-0282/NA (CAAFlog case page) (link to slip op.), on Tuesday, February 12, 2019. A nearly-unanimous court finds that an accused’s affirmative failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The court reverses the decision of the Navy-Marine Corps CCA (that found a violation of the right) and remands for further review.

Chief Judge Stucky writes for the court, joined by all but Judge Sparks who dissents.

Every accused at a court-martial is detailed a military defense counsel, free of charge, without regard to indigence. The accused may even request a specific individual military defense counsel (IMC), however that person must be reasonably available as determined by service regulations (that generally narrow the choice considerably).

Yeoman Second Class (E-5) Cooper was convicted, by a general court-martial composed of members with enlisted representation, of three specifications of sexual assault and one specification of abusive sexual contact. He was sentenced to confinement for five years, reduction to E-1, total forfeitures, and a dishonorable discharge.

Cooper was represented by two detailed military defense counsel: Lieutenant (LT) Buyske and Lieutenant Commander (LCDR) Gross. At trial, the military judge asked Cooper who he wanted to represent him (a standard question), and Cooper said that the wanted to be represented by just those two lawyers and by nobody else. But on appeal Cooper claimed that he also wanted to be represented by IMC, and that his detailed defense counsel failed to request one of the three people Cooper identified as potential IMC. The Navy-Marine Corps CCA ordered a post-trial factfinding hearing, concluded that Cooper was denied his statutory right to IMC, and reversed Cooper’s convictions.

The Judge Advocate General of the Navy then certified the case and four issues to CAAF, challenging the CCA’s findings that Cooper did not waive his right to IMC when he failed to make his desire known to the military judge, that Cooper was denied his statutory right to IMC, and that reversal is warranted as a result:

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

A majority of CAAF answers the first issue in the affirmative, finding waiver based on the fact that Cooper “fully understood the nature of the right to IMC and how it would have applied to him,” slip op. at 9, and then told the military judge that he did not want any other lawyer to represent him. The court then orders a remand to the CCA for consideration of other issues that Cooper raised on appeal but the CCA did not address in its initial review.

Read more »

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 19, 2019.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Tuesday, February 12, 2019, at 10 a.m.:

United States v. Steele, No. 20170303

Issues:
I. Whether the convening authority improperly approved the appellant’s sentence without a substantially verbatim transcript, in violation of Rule for Courts-Martial 1103(f)(1).

II. Whether the evidence is legally and factually insufficient to support the appellant’s conviction for indecent exposure.

Wednesday, February 13, 2019, at noon:

United States v. Lopez, No. 20170386

Issues:
I. Whether the Fort Benning garrison commander had the legal authority to order searches in privatized housing at Porter Village.

II. Does MCOE regulation number 190-11 prohibit the possession of unregistered firearms (or other applicable weapons) in Porter Village? If not, did the garrison commander still have a substantial basis for concluding that probable cause existed to search appellant’s house?

III. Assuming there was not probable cause to search appellant’s house, does the good faith exception apply? See United States v. Thomas, 908 F.3d 68 (4th cir. 2018); see also United States v. Perkins, 78 M.J. 550 (N.M. Ct. Crim. App. 2018) (certificate of rev. filed) __ M.M. __ (C.A.A.F. 10 Sep. 2018).

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, February 14, 2019, at 10 a.m.:

United States v. King, No. 201800016

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted appellant, a Master-At-Arms Seaman (E-3), contrary to his pleas, of one specification of sexual assault in violation of Article 120, UCMJ. The members sentenced him to confinement for eight years, reduction to the pay grade of E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The CA ordered the sentence executed, except for the dishonorable discharge.

Issues:
I. Does Article 120(b)(1)(B) of the UCMJ fail to provide adequate standards by which an ordinary person can intelligently choose, in advance, whether a sexual encounter would be lawful, rendering it unconstitutionally vague?

II. Were the findings instructions plainly erroneous because lack of consent was not included as an element of the offense of sexual assault by bodily harm, and because the instructions would have permitted a conviction without the prosecution proving lack of consent beyond a reasonable doubt?

This blog has frequently discussed ongoing efforts to make the various disciplines of forensic science more reliable:

Scholarship Saturday: Strategies to improve the quality of expert testimony offered at trial (August 12, 2017)

Scholarship Saturday: The chronic problem of invalid expert opinion testimony (August 5, 2017)

Scholarship Saturday: DOJ asks the public to submit ideas on forensic science (April 15, 2017)

Scholarship Saturday: Forensic science standards beginning to take form (April 1, 2017)

Scholarship Saturday: Believe the accused (April 25, 2015)

A recent three-part video series entitled “False Positive”, created by Joss Fong and published by Vox Media, explores the issue anew, through the lens of the 1985 wrongful conviction of Robert Lee Stinson.

At 21 years old, Mr. Stinson was arrested and wrongfully incarcerated for 23 years because of unreliable in-court expert opinion testimony from two government forensic scientists.

Read more »

CAAF decided the Navy case of United States v. Forbes, __ M.J. __, No. 18-0304/NA (CAAFlog case page) (link to slip op.), on February  7, 2019. The court unanimously affirms guilty pleas to three specifications of sexual assault by causing bodily harm based on the appellant intentionally hiding his HIV-positive status from his sexual partners.

Judge Sparks writes for a unanimous court.

Aviation Maintenance Administrationman Second Class (E-5) Forbes pleaded guilty to various offenses, including four specifications of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) in violation of Article 120(b)(1)(B) (2012) that were related to Forbes intentionally hiding his HIV-positive status from his sexual partners.

The theory that failure to inform a sexual partner of HIV status constitutes bodily harm was based on CAAF’s holding in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), in which the court unanimously held that:

Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”).

74 M.J. at 68. The Navy-Marine Corps CCA applied Gutierrez to affirm Forbes’ guilty pleas in a published decision. United States v. Forbes, 77 M.J. 765, 769 (N-M Ct. Crim. App. 2018) (discussed here). CAAF then granted review of one issue:

Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.

In today’s opinion Judge Sparks clearly explains that the guilty plea in this case is entirely proper because “true consent must be informed,” slip op. at 4 n.4, and therefore:

Appellant committed a sexual assault each time he had sexual intercourse with one of the victims without first informing her of his HIV status and thereby lawfully obtaining her consent to the intercourse.

Slip op. at 4.

Congress repealed Article 120(b)(1)(B) (2012) in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.” CAAF’s holding in this case will almost certainly apply to that new offense.

Case Links:
NMCCA opinion
Blog post: NMCCA opinion analysis
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N.M. App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief in support of Appellant (OutServe-SLDN, Inc.)
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Air Force case of United States v. Hale, __ M.J. __, No. 18-0162/AF (CAAFlog case page) (link to slip op.), on February 6, 2019. Addressing the limited (though recently expanded) UCMJ jurisdiction over members of the reserve components and the prosecution’s use of evidence of conduct that occurred outside of those limits in this case, a majority of CAAF finds the evidence was properly used to prove intent associated with conduct that was subject to UCMJ jurisdiction, and it affirms the findings, sentence, and decision of the Air Force CCA.

Judge Sparks writes for the court joined by all but Judge Ohlson, who dissents in part (disagreeing with the core holding of the majority opinion).

CAAF then granted review of two issues and specified a third:

Granted Issues:
I. The lower court found as a matter of law that personal jurisdiction does not exist outside of the hours of inactive-duty training. The lower court proceeded to find personal jurisdiction existed over Appellant because he was “staying” with his in-laws. Was this error?

II. Whether the lower court erred when it concluded the military judge correctly instructed the members they could convict Appellant for conduct “on or about” the dates alleged in each specification.

Specified Issue:
III. Whether the lower court erred in concluding the court-martial had jurisdiction over specification 2 of additional charge 1, as modified to affirm the lesser included offense of attempted larceny.

Read more »

Monday’s daily journal includes this entry:

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent, and United States, Real Party in Interest. U.S. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, we note that this Court previously ordered the United States to show cause why the requested relief should not be granted. We also ordered the United States to “specifically address the jurisdiction of this Court to grant the requested relief.” Hasan v. United States Army Court of Criminal Appeals and United States, No. 19-0054, __ M.J. __ (C.A.A.F. Dec. 28, 2018) (order).

Citing Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005), the United States submitted an answer that in two sentences conceded jurisdiction of this Court over this case. In reply, Petitioner stated that the United States had correctly conceded jurisdiction and cited LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), Center for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013), and Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012). We consider the answer of the United States to be inadequate. Accordingly, it is ordered that the United States is directed to specifically address the jurisdiction of this Court to grant the requested relief, including citation to all relevant authorities, in light of the fact that the Army Court of Criminal Appeals has not completed its appellate review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012), and to do so on or before February 11, 2019. See, e.g., United States v. Denedo, 556 U.S. 904 (2009), Clinton v. Goldsmith, 526 U.S. 529 (1999).

Petitioner may file a reply within 5 days of the filing by the United States.

(emphasis added).

Unfortunately, this sort of thing has happened before.

Mil. R. Evid. 404(b) permits admission of evidence of uncharged acts for non-propensity purposes such as proving knowledge, intent, or the existence of a plan.

In the Air Force case of United States v. Hyppolite, No. 39358 (A.F. Ct. Crim. App. Oct. 25, 2018) (link to slip op.), the Air Force CCA considered convictions of unlawful sexual touchings of four individuals where the prosecution was allowed to use each alleged touching as evidence of the accused’s plan to commit the other touchings:

The Government argued . . . that Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.

Slip op. at 8. Of five charged specifications (one of which – specification 2 – resulted in an acquittal) the CCA concluded that some were admissible as evidence of a plan to commit others, but all were not admissible to prove all:

the military judge erred in concluding that evi-dence of sexual contact supporting Specifications 1–3 made more probable a fact of consequence for Specifications 4 and 5 and vice versa.

Slip op. at 11. The CCA then found one conviction (specification 1) factually insufficient and the erroneous 404(b) ruling harmless with respect to the other convictions.

Last week CAAF granted review of the CCA’s finding of harmlessness:

No. 19-0119/AF. U.S. v. Ralph J. Hyppolite, II. CCA 39358. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE’S ERRONEOUS ADMISSION OF EVIDENCE REGARDING SPECIFICATIONS 1, 2, AND 3 AS A COMMON PLAN OR SCHEME FOR SPECIFICATIONS 4 AND 5 WAS HARMLESS.

Briefs will be filed under C.A.A.F. R. 25.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 19, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 12, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Update (31 Jan, 2120 EST): Numerous edits to the USA Today story were made over the course of the day, and the final paragraph (quoted at the end of this post) addressing lower overall rates of military sexual assault is no longer part of the story. The version of the story discussed in this post is available here.

A few hours ago USA Today published this story alleging that:

Incidents of sexual assault at U.S. military academies spiked nearly 50 percent during the last school year despite years of focus on the issue and declarations of zero-tolerance, according to results of a survey conducted by the Pentagon.

The number of students reporting unwanted sexual contact totaled 747 during the 2017-18 academic year compared with 507 in 2015-16, according to anonymous surveys of cadets and midshipmen. Unwanted sexual contact ranges from groping to rape.

(emphasis added). All the usual suspects reacted in their customary fashion. For example, Congresswoman Speier (D-CA) is quoted in the story as saying, “Clearly what is being done to address sexual assault in our academies is not only not working, it has allowed assault rates to increase a staggering 47 percent.” Additionally, Don Christensen – a retired Air Force judge advocate and President of the advocacy group Protect our Defenders – is quoted as saying, “Clearly there’s a cultural problem at the academies.”

Wait just one minute.

The DoD conducts an annual assessment of the Military Service Academies to determine the effectiveness of its sexual assault prevention programs, as required by Section 532 of the FY 2007 NDAA. The assessment is called the Annual Report on Sexual Harassment and Violence at the Military Service Academies, and it is conducted on a Academic Program Year basis. The USA Today story appears to be based on the results of the most recent assessment, for Academic Program Year 2017-2018. The report is available on the DoD Sexual Assault Prevention and Response Office website, and it disproves the USA Today story.

Let’s start with the top-line assertion in the USA Today story that:

Incidents of sexual assault at U.S. military academies spiked nearly 50 percent during the last school year. . .

That’s false. Totally fake news.

At the outset, while an increase from 507 (in 2015-2016) to 747 (in 2017-2018) is, indeed, nearly a 50% increase, that timespan is two school years, not one. But that’s not what makes the assertion fake news. Rather, it’s fake news because the underling number is an estimate.

Last year’s report (for Academic Program Year 2016-2017) explained the 507 number as follows:

The Department tracks prevalence estimates over time and compares them to reports received as one of its measures of progress. As illustrated in Exhibit 5, estimated rates of past-year USC [unwanted sexual contact], measured in APY 15-16, indicate that about 507 cadets and midshipmen indicated experiencing some form of USC during the APY, suggesting that the 64 reports received last year involved about 13% of the estimated number of victimized cadets and midshipmen.

App. D. at 9 (all emphasis added) (direct link). Put differently, the 507 number was an estimate of an indication of an experience of some form of unwanted sexual contact, which is not the same thing as USA Today’s reported “incidents of sexual assault at U.S. military academies.”

The 747 number is also just an estimate of an indication of an experience, as explained by the current (Academic Program Year 2017-2018) report:

Results from the 2018 SAGR estimate that about 747 cadets/midshipmen experienced some form of USC in the past-year, compared to 92 reports of sexual assault received by DoD from cadets/midshipmen for an incident that occurred during military Service.

2017-2018 report, Appendix D at 11 (emphasis in original) (direct link). A footnote adds:

SAGR prevalence is only an estimation. DoD uses these estimates to measure the scope of sexual assault and the degree of underreporting at each academy.

2017-2018 report, Appendix D at 11 n.10 (double emphasis in original) (direct link). That is also not the same thing as USA Today’s reported “incidents of sexual assault at U.S. military academies.”

SAGR – by the way – refers to the Service Academy Gender Relations Survey, which is a survey conducted every other year. It was conducted in 2016 and in 2018. The 2016 report is available here, and the 2018 report is available here. The 2016 report explained the results with this language:

It should also be noted that all results are based on self-reported data provided by survey respondents. Accordingly, results describe experiences that respondents indicated experiencing but may not be interpreted as evidence that an event(s) occurred. All references to “behaviors experienced” should be interpreted as “behaviors reportedly experienced.”

2016 Report at viii (direct link (loads slowly)). That is also not the same thing as USA Today’s reported “incidents of sexual assault at U.S. military academies.”

I can’t find the 747 number in the 2018 SAGR report, but the 2016 SAGR report did include the 507 number, with this explanation:

Across all DoD Academies, 4.0% of students (women and men combined) indicated they experienced unwanted sexual contact since June 2015. This represents about 1 in 8 women (12.2%) and 1 in 60 men (1.7%). Based on the 9,376 eligible respondents from a census of 12,564 students, a constructed 95 percent confidence interval ranges from 485 to 529 students, with a point estimate of 507 students who indicated experiencing unwanted sexual contact in the past academic program year (APY).

2016 Report at x (direct link (loads slowly)). You can draw your own conclusions about those percentages, but USA Today’s report of “507 [incidents of sexual assault] in 2015-16” is fake news.

The USA Today story does, however, include some real news about military sexual assault. The very last paragraph explains:

There has been some progress: rates of sexual assault for active duty men and women decreased between 2016 and 2014 and are at the lowest level since 2006, according to the Pentagon.

(emphasis added).

This week at SCOTUS: The cert. petition in Larrabee is scheduled for conference on February 15, 2019. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral argument dates at CAAF are February 19-20, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, January 29, 2019, at 6 p.m., at the Yale University School of Law, Levinson Auditorium, 127 Wall Street, New Haven, Connecticut 06511:

United States v. Miller, No. 20180023

Issue: Whether the military judge erred in denying appellant’s motion to suppress the evidence seized from his quarters.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, January 31, 2019, at 10 a.m.:

United States v. Baas, No. 201700318

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of conspiracy, one specification of making a false official statement, two specifications of committing a sexual act upon a child, two specifications of producing child pornography with intent to distribute, and two specifications of distributing child pornography in violation of Articles 81, 107, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 920b, and 934 (2012). The appellant was sentenced to fifteen years’ confinement, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed.

Issues:
I. Did the military judge abuse his discretion in admitting the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer?

II. Did the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer constitute testimonial hearsay, the admission of which violated the Sixth Amendment?

Audio of last week’s argument before the DC Circuit in the al Nashiri military commission (noted here) is available at this link: Oral argument audio.

CAAF decided the Army case of United States v. Bodoh, __ M.J. __, No. 18-0201/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 23, 2019. Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless, and it affirms the findings, sentence (with a correction), and decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training

Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.

The granted issue involves three phases of the court-martial. First, during voir dire of the members, the prosecution asked questions that referenced the SHARP program. Second, when Bodoh testified in his own defense that the alleged sexual acts occurred but were consensual, the prosecution asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training Bodoh had received, eventually drawing objections from the defense that led the military judge to give a curative instruction. Third, during closing arguments, the trial counsel repeatedly referenced the SHARP program (without objection from Bodoh’s defense counsel).

Judge Ohlson’s opinion for the unanimous CAAF repeatedly notes the defense counsel’s failures to object – and the associated application of the plan error test – but ultimately concludes that some of the references to SHARP training were not improper and the remaining references were not prejudicial.

Read more »

Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Hutchins, No. 18-0234/MC (CAAFlog case page): Oral argument audio.

United States v. Meakin, No. 18-0339/AF (CAAFlog case page): Oral argument audio.

The audio is also available on our oral argument audio podcast.