ACCA’s website now includes this published MRE 412 opinionUnited States v. Shaw, __ M.J. __, No. ARMY 20100158 (A. Ct. Crim. App. May 18, 2012).

A short excerpt from the opinion’s background section will give you a flavor: “Here we are presented with a case where the defense provided notice under Military Rule of Evidence [hereinafter Mil. R. Evid.] 412 of one thing, attempted to ask the victim about something else under 412 at trial, and now complains about yet a third matter under 412 on appeal.”  It’s no surprise that an opinion that begins like that ends with the word “AFFIRMED.”

12 Responses to “ACCA issues published opinion holding that MRE 412 issue raised on appeal wasn’t preserved at trial”

  1. k fischer says:

    The military defense trial bar needs to read this case closely, as I believe we will see this situation arise in many future cases.  Some SVP’s and CID offices will interview all of the accused’s ex-girlfriends and spouses they can find to see if there was ever a time where the accused had sex with them when they did not want to have sex.  They will tell them that the accused raped a girl and they need to stop him, and they will convince the ex that she was indeed raped, as well. 

    At trial, the detailed defense counsel who might have a couple of rape cases under their belts will be no match to the Army of SVP’s who try, the vast majority of the time, rape cases and are very well versed in MRE 412.  When coupled with a military judge who is downright combative with defense counsel and is overly concerned with the “privacy rights” of the accuser, the defense counsel will get flustered and not be equipped to articulate why this evidence is admissible. 

    In this case, it would appear that the evidence clearly supported a mistake of fact, as acquiesence to sex after an initial demurral should not be used to convict a Servicemember.  Otherwise, Peg Bundy would be a serial rapist, as she led poor Al up to the marital bedroom while he was crying on many occasions.

    When I see the result of this trial where the accused was charged with and convicted of attempted forcible sodomy, false official statement, abusive sexual contact, and rape, I wonder if anybody else is surprised that this monster only got 6 months in jail?  If he was actually guilty of these crimes, then wouldn’t society be better off with him in jail for more than a mere 6 months?

    Seems like there is another side of the story with this case.  I would be interested in knowing the facts regarding the other victim, as well as the factual basis for the attempted forcible sodomy convicton.  I’ve seen quite a few “attempt” charges that were downright chicken$%@# (as Lord Cloudesly would say). 

  2. stewie says:

    I’m going to say again, that you seriously demean military defense counsel. You act as if the average TDS counsel only has a “couple of rape cases under their belts.”  At my base, we’ve already done more than a couple of rape cases since I’ve been here. During my time as a defense counsel, I did more than a couple by far, my peers did more than a couple by far, it was and is a large chunk of what TDS counsel deal with.
    In my area, the SVP often comes in at the last minute because he’s swamped with cases and serves multiple jurisdictions, so I’ve yet to see “all of the accused’s ex-girlfriends and spouses” interviewed, although on occasion, an ex-wife has been interviewed, and that is what a good prosecutor should do.

  3. Dew_Process says:

    Let me take a middle ground, having just finished a DuBay hearing last week on this issue.  The DC had never defended a contested “rape” allegation and was afraid of the uncharged misconduct raised in CID’s interview of the ex-wife, who spewed forth every conceivable form of sexual misconduct known to mankind and the animal kingdom.  Notably, pulling the divorce file from the clerk of court noted nothing of the above and no objection to child visitation issues.  The change in attitude was apparently triggered by a screw-up at DFAS which had about 10 months of child support “on account” because they had transposed a number when the ex got a new checking account and sent in a voided check to transfer the direct deposits.

    But, as KF suggests, in another case, CID just located an ex-girlfriend in Germany for a client convicted almost two years ago “just in case” there’s a retrial.

    I think the point isn’t necessarily the inexperience of TDS personnel, but rather the totally disproportionate allocation of resources in these cases, while defense requests for investigative assistance or expert assistance are routinely denied and vigorously contested by TC’s.  The money and resources being thrown into the SVP programs are all matters of record and need to be addressed just as vigorously by DC where appropriate.

  4. stewie says:

    I’m sure you can come up with several more anecdotal bits, as can I about bits where TDS counsel ask for and received experts, and won acquittals. I once fought for and received an expert who wrote the book on interviewing child victims to say the interview done was flawed, and an acquittal in a child sex assault case was gained. (actual my much junior TDS co-counsel did all of the work for/with that expert).
    I’ve seen that happen plenty of times. I am sure that initially if it weren’t for appellate courts and military judges, the government/SVPs would have a significant advantage over TDS counsel (and not sure it’s any less of an advantage over CDC). MJs and CAAF balances that somewhat. But not sure how CDC counsel will change or challenge monetary disparities anymore than military TDS counsel.
    I just find the constant string of CDC on this website more or less casting military TDS counsel as either not competent, or inexperienced (which is really the same thing) or timid as not in any way reflective of what I’ve personally observed over the last decade.

  5. k fischer says:

    I am not castigating TDS counsel.  I am attempting to make the same point that Dew Process is making: that the allocations of resources resoundingly favor the Government in sexual assault cases.
    For instance, it would be like an iron chef competition where sushi is the featured dish.  You have a sushi chef and 4 other chefs who are employed by full service restaurants who serve different types of food, some of which might be sushi, but the majority of food served is not sushi.  The sushi chef has a team of sous chefs, all of whom prepare nothing but sushi.  The 4 other chefs have one sous chef to share between them.  Moreover, the sushi chef has been preparing sushi for between 6-8 years, while the other chefs are lucky to have 5 years experience.  Who do you think has the advantage?  Now some of the other chefs, they might make better sushi dishes, but on the average, who do you think will win?
    I am not saying that all TDS counsel are incompetent.  As far as timidity goes, based on my experience, CDC are far less timid than their TDS counterparts.  When I was TDS, my jaw hit the floor when I saw Greg McCormack fighting for our client.  I was the timid TDS counsel, but I learned quickly that our clients want someone who will fight for them.  You don’t get the calls that I get, “My TDS counsel just doesn’t seem like he/she knows what he/she is doing.  It seems like the only thing they’re concerned with is me taking a deal.”  Sometimes I understand, and sometimes I tell them “I know CPT ***, and if you aren’t happy with him/her, then you aren’t going to be happy with me.”
    I’m not talking about situations on a micro level.  What I am talking about is how Army’s military justice system with regards to sexual assault offenses is completely skewed in favor of the accusers. 
    But, lets take the individual case of Shaw and see how the appellate courts and military judges leveled the playing field and dimmed the significant advantage that SVP’s have over TDS counsel.  How comforting is it for Shaw who has already spent 6 months in jail because his TDS attorney couldn’t explain to the Military Judge why the evidence was admissible under MRE 412?  As for the Military Judge, she couldn’t figure out that the evidence was relevant for a mistake of fact defense by Shaw?  What a wonderful gatekeeper!  Sorry Shaw, your attorney can’t articulate how your girlfriend’s previous instances of acquiescing when you pestered her about getting your swerve on didn’t create of mistake of fact that you could talk her into sex, and that when she said, “I’m not in the mood” she really meant stop trying to get her to acquiesce, so I get sustain the Government’s objection simply because you did not say the right words. 
    Shaw’s attorney failed to succinctly explain why the evidence was admissible at trial, so now the appellate courts can fall on the, “well, Shaw had the chance to explain that at his trial (as if Shaw was well versed in the intricacies of 412), and only now is he explaining this new theory” excuse.  The military judge knew why the evidence was relevant, but because the Shaw’s attorney did not articulate it, the appeal is denied.  Lot of good the appellate courts did for Shaw who got out of jail before his appeal was even heard.
    Or how about Lucas who spent 14 months in jail on a case where the NMCCA reversed because they were not convinced beyond a reasonable doubt that he committed rape?  Can’t wait to hear the facts of that case. 
    Stewie, I have no doubt that as a TDS attorney you were more competent than most CDC’s, and that you fought just as hard as any CDC would for their clients.  I would also imagine that as a leader, you’re office was on a whole the best in your branch of service. But, I would imagine that you were the exception.  I was fortunate enough to have that when I was TDS.  My RDC was the best in the Army, my SDC was the best in the Army, and the other TDS attorneys (with one exception) were just as competent. 
    But, you and I have very different experiences.  I’ve done what you do.  But, you have never done what I do.  And I would bet money that you don’t spend, on countless occasions, an hour or more of free time consulting a Servicemember who doesn’t have the funds to hire you, but has serious misgivings about his TDS counsel’s competence or aggressiveness. 
    I think that if you walked a mile in my shoes, your opinion might be different, and you would be a little less defensive about the military throwing millions of dollars at the SVP program, while TDS gets crap.  If not, then perhaps deep down inside, you just like being the victorious underdog.  Understand: not everyone is as competent as you, and on the whole, innocent Servicemembers will be wrongfully convicted.

  6. stewie says:

    I’ve never done what you do? If you mean be a CDC, then no, if you mean be a military defense counsel? Then, uh yeah, I’ve done what you do, and did for an extraordinarily amount of time in the military world.
    And I know the current TDS counsel i go up against are very aggressive. To the point of requesting experts in every single case, and I mean literally every single case, aggressive. I also can point to three separate CDC who are not only less competent than TDS counsel, but guys who clearly don’t know or ignore the law.
    But, they make a lot of “aggressive” moves so their clients probably do think they are great. I don’t think their average client ends up better off then they would have been though.
    If the military judge couldn’t figure it out in Shaw, then how is having CDC at the trial level going to fix that? If this isn’t about competency of TDS counsel, that is.

  7. k fischer says:


    Okay, so you have not been a CDC and you don’t advertise on Google as a court-martial attorney, so you don’t hear all of the stories from Servicemembers world wide looking for a CDC because of their lack of confidence.  That was my point.  You have 1/2 of the experience that I have.  We both share the same military experience, but I am the only one who would be in the position to hear from TDS clients regarding their attorneys’ representation of them when they reach out to a civilian for legal advice.  That’s where I am coming from.  You’ve never been there, so that’s why you don’t understand.

    Requesting and fighting for an expert in every single case makes one very aggressive under your definition?  You just made my point. That’s what I would call competence.   When you have one of the SVP’s at a conference in DC call out a TDS attorney by name for having a “scorched earth policy” when it comes to representing their clients, that’s what I call aggressive.

    And I’m sure that there are as many idiot CDC’s out there, and perhaps I’m considered one of them.   But, you know, I reread my initial post, and nowhere do I mentioned that CDC’s are more competent than TDS counsel.  My point was that most SVP’s are far more experienced because that is a job requirement, they have any Army of CID agents who focus on Sexual assault, and their job is easier because rape cases are the majority of what the SVPs’ try.  This on average makes the SVP program unfair, and this case is an example of that.  I am not advocating that Shaw hire a civilian attorney.  I am advocating that the Army throw a bone to TDS and the Servicemember they defend, many of whom are falsely accused of crimes, by giving them an equivalent to the SVP program.  Until they do, then we are going to continue to see results like this.

  8. stewie says:

    interesting, because I’ve had to watch counsel who have buyer’s remorse with their CDC, one in particular.
    Yes, it is not a surprise that military accused are leery of their military assigned counsel. I’m sure their first instinct is to go after CDC. I’ve rarely seen the case that accused get CDC after having been assigned a military counsel(s) for a decent period of time, I do see it when they are initially in trouble.
    And please, let’s not make this some difficult, arcane, can’t understand it unless you’ve done it idea, it ain’t that complicated. Military accused often do not trust someone wearing the same uniform and paid by the same people that are currently working to put them in jail. They aren’t even sure military counsel have an actual law degree, as I’ve been asked that several times.
    You say your point isn’t about competency, but then you talk about clients calling you up complaining about TDS counsel and wanting a CDC. If an expert is necessary, and a counsel doesn’t get one, that ain’t aggressiveness, that’s competence. And since CDC usually don’t fund their own experts, then again there isn’t much more, if it truly isn’t about competence as you say, that you can do other than get money from the Accused or the government for those experts.
    Your point isn’t about competency but then you say they should have the equivalent of the SVP program…so color me a bit confused. An SVP like program isn’t going to fund experts, it would only go towards experience and competency…which you say this isn’t about.

  9. k fischer says:

    I did not initially compare the competency between CDC’s and TDS.  My initial point was to compare your average SVP counsel with a TDS counsel.  You made the leap that I was attempting to demean military defense counsel to say that CDC’s are superior to military defense counsel, and sadly I bit into that red herring. 
    Perhaps you don’t want TDS to have the same qualifications as an SVP because you’re an instrument of the man, now, so you have convinced yourself that the SVP program is really fair.

  10. stewie says:

    I’ve yet to physically see an SVP sit on a case at my base so no, I don’t think I’ve convinced myself of anything other than the fact that my folks and I can get convictions in sexual assault cases without an SVP.

  11. k fischer says:

    “In my area, the SVP often comes in at the last minute because he’s swamped with cases and serves multiple jurisdictions, so I’ve yet to see “all of the accused’s ex-girlfriends and spouses” interviewed, although on occasion, an ex-wife has been interviewed, and that is what a good prosecutor should do.”

    Which one is it? 

  12. stewie says:

    it’s both, they come in at the last minute with advice (or criticism or assistance), but they haven’t actually sat on a case at trial, they are generally hard to get ahold of to ask questions about motions or charging decisions. Wait, once, about a week after I in-processed last year they sat on one (and came in at the last minute to boot). That one case they didn’t particularly add anything to the case that another decent attorney couldn’t have done. So you got me, they came in once, at the very beginning, since I’ve been here.