There were two issues in United States v. Smith, No. 08-0719/CG. The first is whether the petition was filed on time. The second is whether the military judge erred by excluding evidence under the rape shield rule. CAAF today ruled yes to the first question and no to the second. But there was no opinion of the court.
Given both the court’s deep division on the rape shield issue and its highly fact-specific nature, that portion of Smith will likely be of minor precedential import. But Smith may be cited for its resolution of the petition timeliness issue. As Judge Stucky explains in delivering the judgment (but not opinion) of the court, after Cadet Smith lost before the Coast Guard Court, he sought reconsideration. In Smith, the two-judge plurality opined that the 60-day clock to file at CAAF started upon notification of the denial of the reconsideration request rather than upon notification of the original opinion. In dissent, Judge Erdmann, joined by Chief Judge Effron, agreed. (Judge Baker doesn’t appear to have addressed the jurisdictional question.) The court therefore rejected the government’s argument that the petition wasn’t timely filed.
The rape-shield issue is extremely fact dependent. Judge Stucky, joined by Judge Ryan, concluded that the evidence that the military judge prevented the defense from presenting wasn’t vital to the defense’s case and, therefore, wasn’t constitutionally required. Judge Baker concurred in the result, relying on his opinion for the court in United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004), which the plurality also cited. Judge Baker considered the defense’s theory of admission “too far-fetched to pass constitutional and M.R.E. 403 muster.”
Au contraire, concluded Judge Erdmann, joined by Chief Judge Effron. Judge Effron questioned whether M.R.E. 412 even applied to the alleged victim’s false statement about a previous sexual encounter. But he concluded that even if it did, under the facts of this case, the evidence was admissible under M.R.E. 412’s exception for constitutionally required evidence.