In Medina, the military judge essentially ignored the new Article 120 and gave instructions on a consent/substantial incapacity issue in accordance with the old Article 120.  In today’s Medina decision, CAAF held that such an instruction was error, but harmless.  United States v. Medina, __ M.J. __, No. 10-0262/MC (C.A.A.F. March 10, 2011).  Judge Erdmann wrote for a majority including Chief Judge Effron and Judge Ryan.  Judge Baker, joined by Judge Stucky, concurred separately.

15 Responses to “Medina holds that military judge’s instruction ignoring language of the new Article 120 is harmless error”

  1. John Harwood says:

    You just had to know that this was how these were going to start shaking out. Any case where the judge gives the “old” 120 instructions will be found to be error – the judge is simply ignoring the plain language of the statute. However, the error will be found harmless since the government took on a greater burden. Seems this will blunt the urgency for an Art. 120 re-write, so long as judges keep ignoring the statute.

  2. tsam says:

    I’m not sure my bar would agree with the idea that a MJ can intentionally misstate the law in the instructions knowing full well that to do so is legal error. Seems like that could be an ethical violation.

  3. Cheap Seats says:

    I’m with tsam. It is one thing to have tried to do the right thing as a judge and now be told you’re wrong by the appellate court. It is quite different to know you are committing error and to do it anyway. As such, this looks like a problem for the government going forward, but not looking back…

  4. Peanut Gallery says:

    I do not understand footnote 5. How is it that a reviewing court may not rewrite a statite all the while a trial coury is free to do so?

  5. soonergrunt says:

    OK–here’s what I don’t understand–the article is unconstitutional as written, which I gather was determined a couple of weeks ago. But if the judge gives instructions that are not consistent with the statutory language, aren’t the members then convicting the accused of something that is not actually a crime? I mean to ask that it seems to me that the judge just pulled a definition out of his/her posterior. How can the judge give instructions that are not compatible with the current law and the resulting conviction be constitutional?
    That seems insane to me. It’s like the judge just determining that for the sake of this trial, the elements of the crime are these things I thought of, and not what Congress intended. How can that possibly be right? I know that the current 120 is unconstitutional, but that doesn’t just allow judges to make stuff up (or use laws that are no longer on the books) does it?

  6. soonergrunt says:

    I’ll extend (and hopefully be less wordy)
    It’s seems to me to be error to give bench instructions that are not consistent with the language of the statute as written, because that is essentially creating a new offense, instead of the offense with which the accused was charged. The guy was convicted a crime that wasn’t an actual statutorily defined crime. How can that possibly be harmless?

  7. Peanut Gallery says:

    Good points sg. I am also confused about the interplay between a facial challenge and harmless error. Prather = NO possible instruction when Art 120 is applied. Medina =Statute is fine as long as you don’t apply it. That sounds like a facially defective law. If so, how is it subject to harmless error?

  8. Anonymous Air Force Appellate Defense Lawyer says:

    How defective does a statute have to be before it is declared constitutionally defective? The bar is being set pretty high.

  9. brian le chien says:

    I think we are missing the point.

    CAAF didn’t say that it was error for the MJ to not instruct A120 as written. The error was that the MJ failed to explain WHY he deviated from the statute. CAAF couldn’t determine whether he “misinterpreted” the statute, “or affirmatively severed a portion of the statute on constitutional grounds” (wink-wink).

    If the error in Medina is a failure to explain the MJ’s decision, this could be corrected in future cases by explaining why the impossible burden shift is being separated from the rest of the statute.

    And, since it will take 2+ years for those cases to get to CAAF, they gave Congress a little breathing room to fix it.

    Finally, people keep quoting Prather for the propisition that “no instruction” could fix 120. That is not what Prather said. As Medina makes clear, Prather “held that where the members were instructed on [the afirmative defense of consent] with the statutory scheme in [Article 120], the error could not be cured with standard “ultimate burden” instructions. Prather only held that once instructed improperly, no generalized instruction could fix the error. Prather never held that no concieveable instruction could be given.

  10. Anonymous Air Force Appellate Defense Lawyer says:

    I don’t understand. How is that possible. The judge’s instruction is either a) error; or b) not error. How can we say that whether or not the judge’s instruction in this case is error depends on what he says his reasons are at trial. his instruction was either correct, or it was not.

    How can the question of whether a judge’s instruction was error rest on “why” the judge gave the instruction. Suppose we have two judges giving the same instruction. The first gives the instruction because he had eggs for breakfast. The second gives the instruction because of how she interprets the statute. Are we now going to say the instruction was error in the first case but not the second?

    Saying the instruction was error “in the absence of a legally sufficient explanation” is saying nothing at all. Couldn’t the same thing be said about any instruction ever given? Of course it wouldn’t be error if there was a “legally sufficient explanation.”

  11. Bill C says:

    Anon AFDL: You think way too logically. AFCCA must drive you insane!

  12. Stewie says:

    Brian, let’s break it down then:

    If you instruct consistent with the statute, then no conceivable instruction can cure the constitutional error that comes with that.

    If you instruct inconsistently with the statute, then absent a “legally sufficient explanation” you also will err in such an instruction.

    That doesn’t exactly leave a lot left for what conceivable instruction that can be given that doesn’t run afoul of Prather or the SOP.

    AAFADL, All I can guess is that CAAF simply does not want to be the one to “come up” with the exact proper instruction…so they are hoping someone down below comes up with it. Maybe it’s because they can’t think of one, or maybe it’s because they can’t agree on what would thread the needle here, or maybe they simply are stalling for time until the law gets fixed.

  13. soonergrunt says:

    So does Medina now appeal to SCOTUS? Does he have a case they would be inclined to take? I have a real problem with the concept that the judge can craft an instruction that avoids the statutory language of the law and get a conviction on that. That’s like the judge creating special law for this accused or for this particular installation. One presumes that whatever the Congress meant, they meant for the original language of Art. 120 (upon which the judge based his instruction) to no longer be the law of the land.
    Or am I crazy? And yes, I do know the issue of my sanity and the constitutionality of this ruling are not dependent variables. ;P

  14. Brian le chien says:

    Stewie, I think your right. This was a way for CAAF to kick the can down the road.

  15. John Simonivich says:

    Why does all of the military counsel keep understating the facts. The new article 120 was created by congress and enforced by the military for political momentum, substantially incapacitated has no definition it was a term for mentally handicap . Admiral Roughead’s sexual assault summit in SEPT 09 outlined his way forward. He said he wanted every one of these cases prosecuted in a way that ends in a conviction. Read it, it is undeniably undue command influence. It takes away due process and throws the constitution out the window. The judges wont do their duty because they have been ordered not to. At the Great Lakes training facility recruits are trained that if a person consumes 1 drink they cant consent to sex. So when those RDC’s sit on a jury after being trained that one drink equates to substantial incapacitation, they will convict. Bottom line its undue command influence, the government is asking the jury to become scientists to unravel BAC after its trained them that BAC doesn’t matter as long as there is a BAC and the alleged victim doesn’t remember. That means every one that has a drink and has sex after is committing rape through substantially incapacitating their partner. And remember rape is a crime that can be reported ten years later. Enjoy the weekend with a drink.