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.

Colonel Charles N. Pede, USA, Military Justice, the Judge Advocate and the 21st Century,  The Army Lawyer, April, 2011.

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.

Case Links:
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

19 Responses to “Opinion Analysis: United States v. Stewart, No. 11-0440/MC”

  1. Charles Gittins says:

    Unfortunately, TWO allegedly experienced military judges were unable to see what was as plain as the nose of their  faces in an issue that I brought up repeatedly about the charging decision and form of the charge (which had also been raised at the Article 32) — to the point of irritating the judge who tried the case.   Nick’s case highlights the foolishness of the Article 120 statute and its serial mistakes in legislative drafting by lobbyists looking for more convictions, not due process (which is likely to happen when the purpose is to increase convictions, after all).  This case could have been overturned on many issues, but the one that makes it impossible to retry it will do just fine, thank you.  Great work by Major Liebenguth (Appellate Defense Counsel), Kelly Repair (detailed Military Defense Counsel at trial), and Nick Stewart, who had to do the time for a crime for which he had been acquitted.  Stewart is Free! 

  2. stewie says:

    I have a harder time blaming the judge or the TC than the drafting of the statute/article for this error.

  3. Michael A says:

    I don’t understand your argument re: conjunctive and disjunctive.  You seem to suggest that only conjunctive is proper for charging, but according to that citation from the MCM – use of either “or” or “and” would be inappropriate or duplicative.  Isn’t there a difference between alleging more than one offense, and alleging more than one theory of a single offense?

    How is this any different from a specification that alleges the accused’s conduct was PGOD or SD?

  4. Zachary Spilman says:

    However, if two acts or a series of acts constitute one offense, they may be alleged conjunctively.

    In Stewart, the two acts constituted one offense; violation of Article 120(c)(2).

    Article 134 Clause 1 and Clause 2 offenses are separate offenses, so there’s arguably a problem either way, but the accused waives this by failing to object and request severance.

    But by charging “and,” the members can return findings of guilty of neither, either, or both. The disjunctive “or” logically permits findings of guilty of neither or either, but not both. 

    Which is exactly the problem the trial judge faced in Stewart.

  5. Michael A says:

    That’s a good argument, but I would disagree that clause 1 and 2 are separate offenses.  See Medina (citing Sapp and O’Connor):

    “The three clauses do not create separate offenses.  Instead, they provide alternative ways of proving the criminal nature of the charged misconduct.”  Admittedly, CAAF’s caselaw on this point is muddy, but they have said in the past that these are separate theories, not separate offenses.

    Also seems odd to me that the US Attorney’s manual says charge in conjunctive, but instruct in disjunctive.   Why set yourself up for a situation where the charging document does not match up with the instructions?  Under general verdict law, so long as the evidence is sufficient for either theory, there’s no appellate issue (unless of course you have a Walters, or I guess now a Stewart, issue).

  6. stewie says:

    I often have my guys just charge one, particularly when it’s pretty clear the other one either isn’t implicated or is only implicated by a large stretch.

  7. Zachary Spilman says:

    Michael A:

    That’s a good argument, but I would disagree that clause 1 and 2 are separate offenses.

    I recall this being discussed in one of the oral arguments so far this term, but I can’t remember which. However, I think Fosler stated the premise pretty clearly, though I admit not as explicitly as I did in my comment above:

    The three clauses of Article 134 constitute “three distinct and separate parts.” United States v. Frantz, 2 C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953). Violation of one clause does not necessarily lead to a violation of the other clauses. For example, “disorders and neglects to the prejudice of good order and discipline” is not synonymous with “conduct of a nature to bring discredit upon the armed forces,” although some conduct may support conviction under both clauses. This is particularly true of clause 3. See, e.g., United States v. Martinelli, 62 M.J. 52 (C.A.A.F.2005) (detailing significant additional steps required to obtain a conviction under clause 3, as compared with clauses 1 and 2).

    An accused must be given notice as to which clause or clauses he must defend against. As we explained in the context of a guilty plea: “[F]or the purposes of Article 134, UCMJ, it is important for the accused to know whether [the offense in question is] a crime or offense not capital under clause 3, a ‘disorder or neglect’ under clause 1, conduct proscribed under clause 2, or all three.” Medina, 66 M.J. at 26. This requirement was based on fair notice. See id. Principles of fair notice require the same in contested cases.

    United States v. Fosler, 70 M.J. 225, 230 (C.A.A.F.,2011)

  8. Capt N.S. Stewart, USMC says:

    Long time reader, first time commenter (and appearing by actual name, which is a good way to make sure I only say what I mean, both now and in future comments).

    I don’t dare purport to be capable of offering legally cogent arguments, comments, or any other form of a worthwhile contribution to this blog.  IANAL.  However, I have read CAAFlog everyday for the past year and a half since release, and I have used this blog (among other resources, and to the chagrin of my defense team) as a means of providing myself rudder steers with respect to the direction in which to take my self-paced study and my own attempts to support my defense.  I am grateful to now be able to finally say something in this forum without concern that I might somehow undermine my goal to eventually realize justice.  

    Five months after the party in 2008, when the 26-yo female’s parents showed on the Marine Corps’ doorstep to issue a complaint, I immediately began studying.  I knew that regardless of what actually happened, I would be fighting an uphill battle simply because of the public’s attitude with respect to such an accusation.  The first thing I did was read Article 120.  When I reached para (t)(16), and despite the fact I had been studying the UCMJ for all of 20 minutes, it was easily apparent to me that I would be required to disprove the G’s burden.  How can one prove consent without proving, as a predicate fact, capacity/capability to consent?  It was illogical and discouraging to say the least.  The unconstitutionality was glaring to me as an amateur law student, and the CCA argument that the burden was only to prove apparent consent, not actual, just didn’t jive.  It took waiting for Prather two years later to have the proof that we were right about the burden shift.  

    After providing a very frank and graphic sworn statement to NCIS and after a recommendation to dismiss from the IO, I started looking forward to returning to my place in the Corps.  Of course, the trial went differently, and it became very apparent how easily a courtroom can go from a level playing field to something other than level.  Actually, this became apparent as early as the 32 and then during G’s merits when the 412 handcuffs were applied and the accused’s past relationships were trotted out as propensity evidence.  

    As ADC said at CAAF, there is no disparaging the MJ here.  Even from my legally unwitting position, I understand that he did the best he could with what Congress gave him.  When you mix a few, unrelated events with each other — ignoring a 32 recommendation, a troubled statute, and a best effort by a MJ to make sense of something “monkeys” would write (according to a CCA judge) — this is what can possibly happen.  It’s unfortunate, but at least it has now been fixed in this one case.

    We can only hope that the New, New 120 does not continue to baffle MJ’s, DC’s, accused, and members the way the Old, New 120 did.  Again, IANAL, but I am not clear on how any DC or accused can know what rules and procedures to expect when he/she walks into a 120 courtroom.  One comment on a 120 post compared it to a game of Calvinball — the rules change every time you play.  Apropos.

    I would be remiss in failing to sing the praises of certain people who regularly visit this forum: Charles Gittins, my fellow Naval Academy alumnus, fellow Marine, fellow aviator, fellow skydiver, friend, and lead counsel at trial, whose vigorous defense set the stage for victory two and a half years later; Capt Kelly Repair, detailed counsel at trial, whose efforts in 802 demonstrated to the MJ the necessity of a mistake instruction; Dr. Don Lewittes, PhD, whose forensic psychology expertise helped shape our defense and no doubt inspired the residual doubt in the members’ minds at a sentencing hearing that should not have happened; and Maj Jeff Liebenguth, who tolerated my lawyerly pontifications and my calls to his cell phone at 2100, and whose argument and legal acumen before CAAF resulted in a resounding 5-0 decision.  We now await a possible reconsider motion/cert petition from the G.

    In The Republic, Plato explains that in order to know the good in something, you must experience the bad (Plebe Year English wasn’t a complete waste.).  I now know the good in impartiality and in justice.  I once did as most: I preached innocent until proven guilty.  But I practiced guilty by reason of suspicion, only innocent by reason of technicality.  

    While we are all against sexual assault, we cannot, in the course of attempting to punish and deter such a heinous crime, forget how we arrive at a court finding that is reliable and in which the public can have confidence.  This event has taught me the difference between a technicality and reversible error.  It has taught me the value in objectivity, in identifying your own bias during an argument, in being quiet long enough to hear both sides, in understanding what/how much you don’t know, in the judicial procedures that safeguard rights so critical to protecting the innocent.  This event has taught me that it is far better for 1,000 guilty men and women to go free than for one innocent American to lose his liberty.  This event has taught me the reason liberty is far more valuable than life.  This event has taught me that when even the slightest protection becomes assailable, all rights become assailable.  This event has taught me why the paramount object of our oath is to support and defend, not a person, not an organization, but a document — incapable of indiscretion or influence from our transitory passions.  

    I look forward to continuing to learn from the great legal minds contributing to this forum.  I look forward to continuing my service to our great nation, to our Marine Corps, to the colors for which my proud grandfather fought at Tarawa, and to our Constitution.  Going forward in my career and in my life, very few will be able to claim the same dedication to justice as I.

    Semper fidelis,

    N.S. Stewart
    Capt   USMC

    [Sarcastic Disclosure: I was the accused in this case.] 

  9. k fischer says:

    Capt Stewart,

    God bless you for your service and this comment.  I just read an article on how ordinary Marines view the sexual assault problem in the military:


  10. Capt N.S. Stewart, USMC says:


    Thank you for your response, and for the link.  Semper fi!


    From the post above…

    “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).”

    Admittedly, I did not go back and re-read 601.  But if 601 requires that the court-martial know which acts were the basis for the reasonable grounds, then, in this case, where the IO recommended that the single charge be dismissed, and notwithstanding the CA’s authority to refer in spite of the 32, how was the court-martial aware of the act that provided the basis for the reasonable grounds determination when no reasonable grounds determination existed? 
    “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.”

    Is the analysis saying that military accused are benefiting from TCs’ lack of training and from the discretion commanders have, or am I misreading it?  I realize that despite how important this case is to me, the case is only anecdotal, but in this instance, it seems TC’s inexperience and commander’s discretion made the trial unnecessarily difficult for the accused.  

    Not ranting, just stating matter of factly.  More than glad to listen to and learn from any feedback.

    Capt N.S. Stewart, USMC

    [Unnecessary Disclosure: I was the accused in this case.]

  11. k fischer says:

    Capt Stewart,

    As we are seeing more, in my opinion, CYA referrals in contravention to the Article 32 Officer’s recommendation to dismiss in sexual assault cases, I think that RCM 601 should be critically examined in such a case.  For instance, in your case, why didn’t the Commander who ordered the Article 32 dismiss the charge after receiving the report?  He could have, couldn’t he?  At that point, wouldn’t the GCMCA would have to reprefer charges and send it to the next higher commander for referral?

    It makes me wonder if in those cases there was unlawful command influence from the SJA to the TC to the SPCMCA, there was defective advice from the TC who advised the SPCMCA that they had to send it up for a decision to dismiss by the GCMCA instead of simply dismissing at the Brigade commander’s level, or if the SPCMCA on his own desire to CYA sent it up for a decision by the GCMCA.  Defense counsel should interview the chain of command to see why they sent it up to the GCMCA.

    Reminds me when I was a TC and the SJA informed the crim law shop that the GCMCA said he would no longer grant Chapter 10, discharge in lieu of courts martial, for any AWOL’s that were over 3 months (sounds familiarly close to an inflexible attitude towards certain offenses, doesn’t it?). 

    I decided on my own to advise my battalion commanders to prefer and hold the AWOL charges at his level and offer to convene a summary court martial to the accused in exchange for a guilty plea and OTH waiver at a separation board.  If accepted, then the accused pleaded guilty at the summary court martial and double jeopardy attached.  At that point, the GCMCA had no option but to approve the discharge with an OTH.  If he complained, then they could have relieved me as a TC because I wasn’t going to be told what to do by the GGCMCA.  I got the process started where an accused would be tried within a week of returning from an AWOL, got 30 days confinement and was out of the military with an OTH. Commanders loved it, in fact, one Brigade put me in for an ARCOMM.  I did not have any deployable units.

    The only time I got any slack was when I sent an OTH up to the CG for a 1.5 year AWOL.  The SJA expressed concern when I told him it was a 1.5 year AWOL, but sold it because the guy was a medical MOS.  But, what option did the CG really have?  Double jeopardy attached.

    Same concept holds true with sexual assault offenses.  When the 32 IO recommends dismissal, then why can’t the O-6 who convened the Article 32 dismiss the charges?  If the GCMCA wants to CYA at that point, then let him re-prefer and explain to his commander why he thinks the case has merit.  Of course, that would take a little more courage (or perhaps stupidity) by the TC advising the SPCMCA who can then blame his TC for giving that advice.  If it is truly the right thing, then the JAG ought to do the right thing, and if somebody doesn’t like it, then get out of the military and make some money without worrying about getting shot at or blown up by an IED during your next deployment.

  12. stewie says:

    Article 32 officers come in all flavors. As for sexaul assault cases, I’ve had one recommend refer when everyone wished he wouldn’t, and another recommend not going forward when he should have. Thus we ended up with an acquittal one could see from a mile away, while the other case went away when it very well could have been a conviction.

    In short, I don’t think that there is an increase in ignoring A32 IOs who say don’t go forward in SA cases, although there may possibly be an increase in going with an A32 IO who says go forward because really, if the IO says go forward in a SA case, and you don’t, not sure how you justify that to the outside world.

  13. Capt N.S. Stewart, USMC says:


    No doubt that whether a CA should accept or ignore an IO’s recommendation is entirely dependent upon the unique factual scenario at issue in each particular case.  Every case is certainly different.  I can hardly argue without bias the reasons this case should not have been referred, so I won’t attempt.  Judgment of the administrative handling is not my province.  



    Your comment led me to revisit the ROT.  According to the original charge sheet, OESCMJ was an O-6 and preferred the single charge and single spec.  Part V of the document details referral of the same charge and spec by the OEGCMJ, a 1-star.  

    This charge sheet was the only document ever served upon the accused, and I have read the entire ROT — no other documents that would indicate SCMCA dismissed and had GCMCA re-prefer.  Had SCMCA dismissed and left it to the GCMCA to re-prefer, I imagine something in the ROT would record that?  

    Also reminds me of the FOIA/PA request filed for the Art 34 letter way back when.  As far as I can tell, not in the ROT as 1103 requires, but sure it will arrive in the mail at some point.  

    Capt N.S. Stewart, USMC 

  14. k fischer says:

    Capt Stewart,

    You are correct.  You would have known and Mr. Gittens would have caught that.  You did well hiring Charles Gittens.  I’ve had Marines call me from the Jacksonville, NC area.  After I quote my fee and tell them my thoughts on the court martial, I tell them to call Mr. Gittens for another opinion. 

    Most of my questions were rhetorical to comment on UCI in the referral process in a case like yours where the IO recommends dismissal.  


    Ever since the SVP program, I cannot tell you how many times I’ve heard TDS counsel tell me when I tell them I’m going to go heavy at the Article 32 to try to get the IO to recommend dismissal, only to have them say, “It doesn’t matter, the SJA will recommend referral anyways.”  I’ve know of two at one post where this occurred.  And, you have US v. Stewart as another example.  I wonder how many others there are? 

    Before the SVP program between ’05 and ’07, I was a TDS counsel and every time I got an IO recommendation for dismissal (3 times), the case got dismissed.  That doesn’t seem to happen anymore.  At least it doesn’t where I practice. 

    If everyone is hoping that an IO recommends dismissal, then why did you prefer charges anyways? To CYA?  That is never an appropriate reason, which is why I would have made a horrible SJA.

  15. Atticus says:

    At the risk of dumbing this all down, I liked the old 120.  It was all or nothing.  I spent all my time as a TC/STC/MJO, etc, and that was fine with me.  Charging decisions were simple; you charged 120 and the old 134 indecent assault in the alternative. The members had to find both force and “without consent.” Easier for the G, easier for the accused, and easier for the judge. On the issue of the witch hunt that arose circa03/04 in the aftermath of the Naval and Air Force Academy scandals, I remember getting a call one day from someone at JAM (USMC Judge Advovate Division) asking about three casaes I had shephered while a TC at MCRD SD in about 2000-2001.  I talked the CAs out of doing 32s on each case because after our investigation we felt the complaints were groundless and a waste of time at a 32.  I told the officer who will remain unnamed that, yes, I recalled those cases, and low and behold I had three multi-page “Meomorandums to File” I was happy to fax him that went into excrutitaing detail on why we didn’t charge those cases.  That stopped them in their tracks, but I still wonder how many former TCs didn’t have such “memos” to provide.  They were definitely looking to burn people. Over teh years, I have come to the conclusion that TCs and MJO’s and SJAs need to have the moral courage to tell CAs that the case just isn’t there, and if it isn’t there and you go ahead and charge it and do a 32 to CYA everyone, you are violating Rule 3.8, violating your oath and putting a servicemember’s life in needless anxiety and jeopardy.  Unfortunately, it’s easier to just knuckle under and throw it in the 32 officer and the court-martial’s court and let them resolve it.  Problem is, when you do that you have results like this.      

  16. Another former TC says:

    I think what this case really shows is that the ideologically motivated redrafting of Article 120 fails even according to its ostensible goal of making prosecutions easier. I seriously doubt that there have genuinely been many convictions, if any, brought under the new 120 that wouldn’t have also resulted in convictions on the same evidence and in front of the same jury under the old 120. The same evidence that would prove “substantial incapacity” under the new 120 would also prove constructive force and lack of capacity to consent under the “asleep, unconscious, or intoxicated to the extent of lacking capacity to consent” benchbook instructions for the old 120. The only time that the government might not actually have to prove “lack of consent” under the new 120 is in a case where it really wouldn’t be at issue anyway, where the defense is going either with a “didn’t happen” defense or the Shaggy defense (wasn’t me).

    On the other hand, the new 120 has succeeded in laying a procedural minefield for the government, from trying to figure out how to draft a charge using convoluted language that reads like something out of an LSAT logic problem, to drafting a coherent set of panel instructions. The result is cases like this that get tossed out because of one of the many procedural pitfalls created by a poorly drafted statute rather than on the merits. A court-martial panel found guilt (including lack of consent) beyond a reasonable doubt, an NMCCA panel that hasn’t exactly been a rubber stamp on factual sufficiency review in the last few years agreed- and the conviction still doesn’t stand because the instructions the judge gave the members made a double jeopardy problem inevitable when they had to either disregard the instructions or vote “not guilty” on one of two nearly identical specifications, no matter how strong or weak the evidence was. 

    The last paragraph of Zachary Spilman’s analysis is spot-on. For everything that might be wrong with the military justice system, well-meaning but uninformed efforts to “fix” things from the outside usually make it worse. There is no legislation that can change the fact that sexual assault cases are difficult and that the facts are often simply impossible to determine with the certainty that the Constitution requires for a conviction. A case getting closed with an NCIS or TC recommendation not to prosecute, or dismissed after a 32 is not a sign of a broken system- and neither is a referral followed by an acquittal.

  17. Capt N.S. Stewart, USMC says:

    Another former TC,

    I realize in these discussions that I am on my toes trying to keep my head above water, while true legal experts can stand flat-footed, but I do want to make sure I understand what I think I understand.  Mainly that is, does your position necessarily assume that a prejudicially flawed procedure cannot affect the evidence and testimony adduced at trial?

    First, I also believe that the law has to give the G something workable, not just the MJ and the accused.  I believe that because the only way for the accused to get a fair shake is for all sides to be on the same sheet of music.  However, if the G loses because of a flawed statute, TC goes home and sulks over a home-cooked meal.  If the accused loses for the same reason, he/she winds up eating green-tinted steak with a spoon.  Still, though, doesn’t everyone want a statute that allows the scales of justice to be truly balanced — for both G and accused?  

    Second, with respect to TC training, I would guess that the G case at a CM probably frequently suffers from it, but couldn’t that also prejudice the accused whose life/liberty are in jeopardy?  A number of different scenarios could have played out in this case, all of which could have been influenced by anything from inexperienced TC to confusing statutory language to unconventional procedure, or all three.  

    For example, based on a given body of evidence accepted at 39(a), MJ rules that consent has been proved by POE and advises TC that G can move the court later or object to the ruling and to the procedure.  Say that the G presents its case-in-chief, rests, then moves the court to upset its earlier ruling based on what is now a different body of evidence….(I don’t even know if such a motion is allowed at that point in trial, but I’m new here.)

    Scenario 1) MJ denies the motion, and defense presents its case with the understanding that it has already been found to have carried its burden to prove consent, i.e., disprove the element of incapacity/incapability….or,

    Scenario 2) MJ grants the motion, and defense presents its case understanding that it must re-prove consent in order to earn the instruction.

    Of course, in this case, MJ did not take action sua sponte to upset his own ruling after G rested, and TC neither objected to the procedure nor moved the court as TC was given leave to do by the MJ.  In my untrained eyes, that is a sign of a lack of TC training because TC should have objected, correct?  

    The point, if I have one, is that if TC objects or moves the court to reconsider the consent ruling, and if the MJ grants the motion, wouldn’t it be impossible to say that the defense’s decision making landscape with respect to the accused testifying would not have been substantially altered?  Said another way, if a well trained TC moves/objects and the defense loses its consent ruling as it heads into the locker room, doesn’t the halftime discussion and strategy become much different, a lot more informed?  Doesn’t that mean, to a degree, that an accused can sometimes benefit from a well trained TC because at least the defense would be perfectly clear on what it has and has not achieved?

    The final point, if I have one, is more of a question.  Of course, I benefit from the fact that I was in the locker room, but isn’t this the reason why procedural errors can be prejudicial?  Because, despite the procedural nature of the error, the error cannot be proven to have had no effect on the evidence adduced at trial?  It seems reasonable to say that if the defense finds out after the G case that it no longer has a consent ruling, then the defense case-in-chief could have changed drastically.  

    This, not to mention the fact that CAAF only addressed the procedural issue of DJ.  My discussion of prejudice mainly hinges on the procedural approach to the burden of proving consent in this case, an issue on which none of us knows how CAAF would have ruled, but may have never become an issue anyway had there been a sua sponte finding of NG upon 917 motion, when the consent ruling was still in place.  Whether or not that 917 NG finding should have been made is a whole other discussion which may have no proper answer.   

    I’ve seen plenty of threads spiral downward into emotional ranting because commentators are personally involved, so let me expressly say that I do not ask these questions in order to re-try the case.  It’s over.  Besides, when you have one person who was the accused and one person whose name includes “TC,” it’s safe to say the two will rarely agree.  I only ask these amateur questions because I don’t know the law as well as everyone else here.  With that said, I don’t expect answers if not warranted, because I have no confidence that my questions are even legally logical!  Thanks for your time.

    Semper fidelis,

    N.S. Stewart
    Capt  USMC

  18. Capt N.S. Stewart, USMC says:

    “a sua sponte finding of NG upon 917 motion”…an oxymoron…sorry about that

  19. k fischer says:

    Capt. Stewart,

    One thing that I have not researched, so I am shooting from the hip, but have a gut feeling about is that evidence adduced at a motion’s hearing is typically not admissible as evidence at the trial on the merits.  I would imagine that the evidence submitted at the pre-trial motion to determine whether the Defense me its burden to get a consent instruction was a statement by you to NCIS or an unsworn to the Article 32 IO.  If it was, then was that evidence marked as a Defense or Appellate exhibit?  If it was a Defense exhibit, then I can see the argument that it should have gone in front of the panel.  If it was an Appellate exhibit, then the panel does not see those exhibits.  If it waa marked as a Defense exhibit for identification, then those do not go in front of the panel. 

    That being said, I do see an issue with using evidence to add an element that should be disproven beyond a reasonable doubt, then not allowing the panel to see said evidence.  This is different than your typical motion to supress.  If I lose the motion to supress an accused statement and the Government does not admit the statement in their case in chief, I cannot admit the statement by saying that the court considered the evidence on a motion, so it should be included in the merits.  This is a different situation because the statement is used as evidence to convince the military judge to add the burden shifting instruction of consent. 

    The cleaner way for your trial would be for the military judge to have ruled on the issue of consent using the appellate exhibit, then after the defense rested and requested the statement to go back with the panel, allow the defense to reopen the case to allow the accused to testify to cure any misconception that the judge was going to allow the statement to go back with the panel members on findings.

    Nonetheless, CAAF did not decide your case based on this issue.  Instead, they kicked the 120 can down the road regarding the burden shifting issue and whether your statement should have gone back with the panel by deciding the case on a multiplicity/inconsistent findings/defective jury instruction/double jeopardy type of reasoning.  Short term, that’s great for you, and you had one of the best attorneys I know fighting for you who had a great result.  But, it does not solve the long term issues with Article 120 UCMJ or the issue that you outline here. 

    I don’t deal with Marine Corps cases, but I know the Army has started the SVP program where they have TC’s who are senior CPT’s and Majors.  I do not see the playing field being better off because they are typically kool-aid drinkers with the experience….a dangerous combination in terms of wrongful convictions…….