In the third opinion of the term, Judge Stucky writes for a majority (with Judge Erdmann dissenting) in United States v. Goodman, No. 11-0389, 70 M.J. 396 (C.A.A.F. Dec. 8, 2011) (CAAFlog case page) (link to slip op.), finding that the military judge did not err in accepting a plea of guilty where the Appellant statements during the plea inquiry did not rise to the level of a mistake of fact defense to the charged offense of sexual harassment in violation of Article 92, UCMJ. However, CAAF remanded the case to the ACCA for Fosler consideration of other offenses charged under Article 134.

At CAAF, the Appellant “assert[ed] that his statements during the plea inquiry — that he thought his comments to PFC L were welcomed — raised the issue of mistake of fact, that because the military judge failed to secure a disclaimer of the defense an inconsistency in his guilty plea was unresolved, and therefore, his conviction should be set aside.”

Judge Stucky wrote that because violation of a general regulation is a general-intent offense, a mistake of fact must be both (subjectively) honest and (objectively) reasonable. He finds that in this case, the Appellant’s belief may have been subjectively honest, but it was not objectively reasonable, given the circumstances. He also gives this caution about rationalizations:

In analyzing Appellant’s case, we should keep in mind Judge Cox’s admonition not to

“overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior.

A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.”

United States v. Penister, 25 M.J. 148, 153 (C.M.A. 1987) (Cox, J., concurring). The military judge recognized Appellant’s rationalization and inquired further into the plea.

In a dissenting opinion, Judge Erdmann finds that there is evidence in the record to support the objective reasonableness of a mistake of fact, and that the trial military judge erred by failing to resolve the conflict, writing:

At no point during the additional inquiry did Goodman admit or agree that at the time of the conversations he was aware that NL found his comments unwelcome or that it was unreasonable for him to subjectively believe his comments were welcome. In other words, Goodman never disavowed that he subjectively believed at the time that his comments were welcome nor did he admit that his subjective belief was objectively unreasonable under the circumstances. Having failed to resolve the conflict between Goodman’s guilty plea and his mistaken belief at the time that his comments were not unwelcome, the military judge was required to explain the defense of mistake of fact and attempt to obtain a disclaimer of the defense.

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