In United States v. Ellis, __ M.J. ___, No. 09-0382/AF, CAAF held that the military judge didn’t abuse his discretion by allowing a government expert to testify about the accused’s risk of recidivism. Judge Erdmann wrote the opinion of the court. Judge Baker concurred in the result.
Ellis was convicted of sexual offenses with an actual minor and indecent communication with an individual he believed to be a minor, as well as possession of child pornography. During the government’s sentencing case, a forensic psychiatrist testified about an instrument called Static 99 that was developed from a statistical study of men released from incarceration for sexual offenses. He testified that “the instrument was found to have a seventy percent rate of predictive validity and was well accepted within the scientific and medical communities.” Over defense objection, he testified that the accused “fell into the moderate high category for risk of recidivism, which reflected a thirty-eight percent chance of recidivism over a fifteen-year window of time.”
CAAF rejected a defense challenge to the sufficiency of the psychiatrist’s basis to draw a conclusion. The expert, CAAF observed, “reviewed the charges and specifications, the extensive stipulation of fact, the forensic analysis of the hard drive and the listing of the images identified there,” and chat logs. The expert also “listened to the guilty plea inquiry, and reviewed the rehabilitation options at Cannon Air Force Base.” That provided a sufficient basis for his opinion, CAAF ruled.
CAAF also ruled that challenges to the Static 99 methodology “went to weight rather than admissibility.” But CAAF dropped a potentially important footnote observing: “Although Static 99 is widely used, the issue as to whether it would meet the Daubert standard is the subject of ongoing judicial debate. See Judge Posner’s critical discussion in McIlrath, 512 F.3d at 425.”
Judge Baker wrote “separately to emphasize that the result in this case is limited to the facts of this case. Among other things, this was a military judge alone sentencing proceeding and Appellant did not object to the admission of the Static 99 information on Daubert grounds.” While emphasizing case-specific grounds to conclude that the accused in this case received individualized sentencing, Judge Baker observed: “A formulaic methodology used for sentencing such as the Static 99 used here would seem to convert individualized consideration into a numeric calculation based on static
factors, including matters that in the military justice system are inherently discretionary, like whether the prosecutor charges conduct ‘on divers occasions’ or through multiple counts.”