It’s tempting to dismiss CAAF’s opinion in United States v. Stewart, No. 11-0440/MC, 71 M.J. 38 (C.A.A.F. Mar. 6, 2012) (CAAFlog case page) (link to slip op.), as a fluke attributable to a military judge’s poor choice of instructions. Unfortunately, the history of the case demonstrates that the issue presented in Stewart is the product of a more-systemic failure.
Captain Stewart attended a graduation party in 2008 where he had a sexual encounter with a very-intoxicated civilian female, [Ms. N], with whom he had previously engaged in sexual activity during a relationship in 2003-2004. Based on the events at the party, Captain Stewart was charged with a violation of Article 120(c)(2) (aggravated sexual assault upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness) in a specification that read:
In that Captain Nicholas S. Stewart, U.S. Marine Corps, on active duty, did, at or near Fairfax, Virginia, on or about 17 May 2008, engage in a sexual act, to wit: using his penis to penetrate the vagina of [Ms. N], who was substantially incapacitated or substantially incapable of declining participation in the sexual act.
At trial, the defense objected to the specification as duplicitous. In the words of the NMCCA,”the appellant maintained that if convicted of the specification as alleged, it would be impossible to determine whether a 2/3 majority found that Ms. N was substantially incapacitated, substantially incapable of declining participation, or both.” United States v. Stewart, No. 201000021, Slip op. at 3 (N. M. Ct. Crim. App., January 31, 2011). The government conceded that the specification was duplicitous and argued that, pursuant to R.C.M. 906(b)(5), the sole remedy was severance. The specification was severed into two, one stating “substantially incapacitated” and one stating “substantially incapable,” but these terms were defined to the members with identical language. The members were then instructed that they may return a finding of guilty of only one of the two offenses, and they returned findings of not guilty to the first specification and guilty of the second. Accordingly, “Stewart was initially found not guilty by members for certain conduct for a specific Article 120 offense as defined by the military judge, and was then found guilty of the same conduct for the same offense.” United States v. Stewart, No. 11-0440/MC, Slip op. at 13 (C.A.A.F., 2012).
CAAF unanimously concludes that “the principles underpinning the Double Jeopardy Clause as recognized in United States v. Smith made it impossible for the CCA to conduct a factual sufficiency review of Specification 2 without finding as fact the same facts the members found Stewart not guilty of in Specification 1. … The findings and the sentence are set aside and the specification and the charge are dismissed with prejudice.” Stewart, No. 11-0440/MC, Slip op. at 14 (C.A.A.F., 2012).
The tragedy is that CAAF’s resolution turns on the amateurish charging decision of the government, rather than any of the other significant issues presented by this case (which included the important question of the proper role of the military judge in determining the availability of the defense of consent). The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled (see, for example, the United States Attorneys’ Manual entry on the subject), and a court-martial is specifically authorized, by R.C.M. 918, to return findings with exceptions. The use of the word “or” in place of “and” doesn’t just make a specification duplicitous, it creates a potential referral (i.e., jurisdictional) issue as the court-martial cannot know which facts were the basis for the “reasonable grounds to believe that an offense triable by a court-martial has been committed,” as required by R.C.M. 601(d)(1).
Unsurprisingly, the Manual for Courts-Martial acknowledges this basic principle. The discussion to R.C.M. 307 (“Preferral of charges”) reads, in the relevant part:
(iv) Duplicitousness. One specification should not allege more than one offense, either conjunctively (the accused “lost and destroyed”) or alternatively (the accused “lost or destroyed”). However, if two acts or a series of acts constitute one offense, they may be alleged conjunctively.
This rookie error in Stewart was compounded when the prosecution failed to see the mess. The government intended to charge Captain Stewart with the single offense of aggravated sexual assault, in violation of Article 120(c)(2), in two of the four possible ways; to present “different ways [the accused] could have [sexually] assaulted the victim at the time and place alleged, based on the evidence presented at trial and the parties’ theories of the case.” United States v. Brown, 65 M.J. 356, 358 (C.A.A.F., 2007) (doing this “[does] not create a duplicitous specification”). Whether [Ms. N] was “substantially incapacitated” and whether she was “substantially incapable of declining participation in the sexual act” were questions of fact for the members to resolve in their findings. But the military judge’s instructions created a logical impossibility.
This is not to fault the trial counsel individually, who was undoubtedly focused on proving this factually-difficult case (and of course everyone makes mistakes). Rather, the system is at fault. Anyone who is familiar with the judge advocate assignment process – especially in the Marine Corps (Stewart being a Marine case convening by a Marine commander) – knows that trial shops are often overloaded with inexperienced attorneys. These junior officers may have brilliant legal minds, but they will make rookie mistakes when they are sent into the courtroom alone and unafraid by leadership who view trial experience as a career-killer. This was part of my point last year in Where are the teachers? But don’t just take my word for it:
New counsel, especially trial counsel (TC), have been deprived of the synergy and immersion that used to be provided by a centralized military justice office, where young counsel could learn from and consult with their more experienced colleagues.
There’s a growing chorus of voices attacking the military justice system. Just this week The New York Times wrote that “The Defense Department’s record of prosecuting [sexual] assault cases is dismal.” The Stewart case isn’t helping matters, as McClatchy Newspapers wrote that “the military is prosecuting a growing number of rape and sexual assault allegations … However, many of the accused aren’t being convicted of serious sex crimes, prompting concerns that the military is prosecuting cases that should not be sent to trial because of questions about the evidence.” There may also be a yet-untold story in overly-favorable pretrial agreements.
Defense counsel will read the Stewart opinion, and the mounting criticisms of military prosecutions, with glee. They shouldn’t. The patriarchal military justice system is good for the military and great for the accused. “Reforms” that introduce civilian bureaucrats or limit commanders’ discretion will remove an essential part of the military family: our ability to “take care” of our own.
• N-MCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis