Back in May, Col Sullivan reported:

NMCCA heard oral argument in United States v. Lucas, No. 201100372 yesterday.  Today, it issued this order indicating that it has decided to reverse a finding of guilty to rape while upholding a finding of guilty to adultery and set aside the sentence.  To prevent SSgt Lucas from having to serve any more unjustified confinement, NMCCA issued the order preceding preparation of the full opinion.  The order directs that SSgt Lucas be released from confinement “forthwith.”

The CCA issued its opinion on August 28. United States v. Lucas, No. 201100372 (N-M.Ct.Crim.App. Aug. 28, 2012). First, some facts:

Beginning in late 2009, the Appellant and a female Marine in his unit, Corporal (Cpl) C, became close friends. In March 2010, they went on a date that culminated in consensual sexual intercourse in the Appellant’s off-base housing. . . . In April 2010, the Appellant married another woman (not Cpl C). . . . On 27 May 2010, the Appellant went to Cpl C’s barracks room on her invitation to discuss some problems Cpl C was having with her chain of command. . . . There is substantial disagreement between the parties as to the chain of events that took place next. Cpl C testified that while in her barracks room, the Appellant held her face down on her bed with his right forearm, using his left hand to undo their respective MCMAP belts and unbutton and pull down not only his trousers, but hers as she fought to keep them up. He then penetrated her vagina with his penis from behind, thereby committing forcible rape. After a few minutes of “fighting with all of [her] might,” Cpl C “froze” and stopped resisting the sexual intercourse. The Appellant, according to Cpl C, then turned her over onto her back and continued having nonconsensual sexual intercourse with her from the front. . . .

The parties agree that after the intercourse had continued for several minutes, the Appellant asked Cpl C where she would like him to ejaculate. Pursuant to her instructions, he ejaculated on her stomach, avoiding the new navel ring she had acquired. The parties also agree that the Appellant and Cpl C then went to the double sinks in Cpl C’s barracks room to clean up, and both of them proceeded to the change of command ceremony. During the ceremony the two exchanged multiple text messages. In fact, over the eight days following the incident, the Appellant and Cpl C sent each other over 100 text messages. . . .

Fourteen days after the events of 27 May, Cpl C approached a female acquaintance and reported that she was raped.

The Appellant was convicted, contrary to his pleas, by a general court-martial of members with enlisted representation,of forcible rape and adultery. The approved sentence included confinement for 24 months, forfeiture of all pay and allowances, reduction to pay grade E–1, and a bad-conduct discharge. However, the CCA finds”that the Government failed to prove the element of force and disprove the Appellant’s mistake of fact beyond a reasonable doubt.” Slip op. at 4. In doing so, the court disassembled the Government’s prosecution, piece-by-piece.

The court found that the Government failed to prove the element of force based on four factors: (1) the “Logistics of Cpl C’s Account of the Incident,” (2) “Cpl C’s Post-Incident Conduct,” (3) “Cpl C’s Character for Untruthfulness and Complaint Discrepancies,” and (4) “The Appellant’s Good Military Character and the NCIS Statement.”

On the logistics, the court observed:

It is illogical to believe that a man weighing just over 200 pounds could accomplish these tasks [remove her clothes, boot, and hold her down] against a female Marine, trained in Marine Corps Martial Arts, weighing 155 pounds, under the circumstances described in the record before us. This is especially so when it appears that the Appellant is right handed (see PE 18, showing him sign his statement to NCIS with his right hand), and there is no allegation or evidence that Cpl C was intoxicated or otherwise incapacitated.

Slip op. at 5-6. Of Cpl C’s post-incident conduct, the court concluded:

We note that Cpl C exchanged approximately 30 text messages with the Appellant on the evening of 27 May . . . There were an additional 70 text messages that followed the next week; however, she only reported to the NCIS agent that there was one text message, which she claimed she had deleted. It defies logic that one who suffered a traumatic forcible rape would carry on repeated friendly contact with her assailant, and then delete the messages. Additionally, Cpl C and the Appellant had at least one friendly face-to-face conversation between 27 May and the time Cpl C reported an assault. . . . We find that this conduct undercuts Cpl C’s credibility sufficiently to raise a reasonable doubt as to the Appellant’s guilt.

Slip op. at 6. Considering Cpl C’s credibility, the court found:

[Cpl C’s] behavior is inconsistent with the reporting of a sexual assault. . . .

Finally, during the 8 June recorded phone call that was intended to elicit a confession from the Appellant, Cpl C failed to mention any use of physical force by the Appellant or her vain efforts to escape from him, and, in fact, indicated that the only reason she did not consent was due to a fear of getting pregnant. Her choice of words during this phone call was completely inconsistent with a person who had endured the forcible rape that Cpl C described at trial. Also, it is significant that Cpl C did not dispute the Appellant’s statement during the call that they were both responsible for the alleged pregnancy. Had the intercourse been nonconsensual, it would make no sense for the complaining witness to assume any degree of responsibility for the resulting pregnancy.

Slip op. at 6-7. Finally, reviewing the Appellant’s good military character, the court noted:

The Government presented no evidence that the Appellant possessed a character for untruthfulness. We find that the explanations he gave to the NCIS agent regarding the events of 27 May are believable, especially considering the evidence of his good military character and service history admitted at sentencing.

Based on the totality of the evidence, we are not persuaded of the Appellant’s culpability as we conclude that the alleged victim’s testimony lacks credibility and we hereby reject it.

Slip op. at 7. This section of the opinion also includes a fairly strongly-worded footnote that criticizes the conduct of criminal investigators in this case:

Although we recognize that the Appellant’s typed statement to NCIS in some form admits culpability, we express grave concern about the lack of detail in the statement, particularly in light of the fact that NCIS interviewed the Appellant for almost two hours, yet produced a statement about the incident consisting of a mere 14 lines. Furthermore, when comparing the typed written statement and the interrogation video to the NCIS agent’s in-court testimony, we note the agent left out or seriously mischaracterized important relevant details the Appellant provided during the interrogation.

Slip op. at 7, n. 6. The court then turned to the defense of mistake of fact:

Cpl C testified that during the earlier consensual sexual encounter between them in March, she had been laughing. While she denied laughing during the events of 27 May during her trial testimony, we find the Appellant’s mention of her laughing at least eight times during the NCIS investigation to be credible and telling. Furthermore, his account that her only reservation or hesitation to engage in the sexual conduct was based on his marital status is believable, especially in the context of his explanation that once he removed his wedding band, Cpl C willingly participated in kissing, play-wrestling, and sexual intercourse with him. We find that these facts indicate that even if Cpl C did not subjectively consent to the sexual activity, her conduct was such that the Appellant had an honest and reasonable mistake of fact as to her consent.

Slip op. at 8. Having made these findings, the court set-aside the forcible rape conviction and dismissed the charge.

However, there is still the matter of the adultery conviction, which involved a defective Art. 134 specification. But unlike other recent cases, there was discussion of a terminal element on the merits – in the defense case in chief:

However, during the defense case in chief, there was direct testimony from LCpl JM as to the effect the Appellant’s conduct had on good order and discipline of the armed services, and the defense registered no objection.

Slip op. at 9. The CCA also noted in a footnote:

that although this testimony was presented during the defense case on the merits, the defense failed to move either pretrial for a bill of particulars or at the close of the Government’s case for dismissal of the adultery specification under R.C.M. 917.

Slip op. at 9, n. 7. Reviewing these factors, the CCA concluded:

Based on the record before us, there was absolutely no indication that the Appellant or his counsel were surprised to learn of the Government’s theory on the terminal element, albeit as presented during a defense witness’ testimony, or unable to defend against the evidence regarding the terminal element. Most importantly, the defense counsel conceded that the Appellant “committed adultery” in his closing argument and specifically refers to the disparity in rank with respect to conduct prejudicial to good order and discipline.

The Government’s theory, and therefore the terminal element, “is somewhere extant in the trial record,” and the Appellant was provided sufficient notice.

Slip op. at 11. That the court holds the Defense accountable for it’s failure to object (to the specification, testimony, or argument) alleviates at least some of my concerns of sandbagging raised in the wake of CAAF’s opinion in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).

Ultimately, the CCA set-aside the sentence and authorized a rehearing on sentence for the adultery conviction only.

32 Responses to “Examining Lucas (NMCCA’s reversal of a forcible rape conviction due to factual insufficiency)”

  1. Charlie Gittins says:

    For real?  They leave the adultery conviction intact?  Silly!  She walks away scot free and he goes to jail for a rape he didn’t commit and adultery, a “crime” that has no business being prosecuted by the military at all, absent some overriding military justification, such as a Colonel sending a subordinate officer TDY so that the Colonel could engage in adulterous conduct witht he subordinate’s wife while the subordinate was deployed.  (And yes, that did happen at MCAS Beaufort some years ago).   

  2. Dwight Sullivan says:

    Charlie, and of course something similar to that happened with David and Bathsheba.

  3. k fischer says:

    “It defies logic that one who suffered a traumatic forcible rape would carry on repeated friendly contact with her assailant, and then delete the messages. Additionally, Cpl C and the Appellant had at least one friendly face-to-face conversation between 27 May and the time Cpl C reported an assault. ”

    So what effect does this dicta have on an expert at a Navy-Marine court-martial who is explaining counter-intuitive victim behavior? Could defense counsel submit a motion in limine to keep out an expert explaining that a victim may be trying to reconcile with her acquaintance rapist and normalize what just happened to her?  I can’t imagine any judge would want to admit evidence that defies logic.

    Of course, this behavior coupled with the other counterintuitive victim behaviors of going to LA and partying with friends, telling differing accounts of the rape, mistaking how many texts she was exchanging, and the incredible physical prowess of the accused in taking off both his clothes and hers with his left hand supports that the Government did not prove it’s case beyond a reasonable doubt.

    Whether she lied or not we will never know, but one thing is for sure: it is inexplicable based on the facts in this opinion how a panel member could say they were convinced beyond a reasonable doubt that the accused raped Cpl C.

  4. Soonergrunt says:

    There is also the case of David Hale.
    But I’ll agree that unless it’s tied to some other criminal activity or abuse of privilege or rank, adultery should not be a criminal offense.  It seems to me that it’s frequently the consolation prize for rape acquittals or reversals.

  5. Bill C says:

    Having not read the ROT, what bothers me about this opinion is when the court says that “However, during the defense case in chief, there was direct testimony from LCpl JM as to the effect the Appellant’s conduct had on good order and discipline of the armed services, and the defense registered no objection.” 
    Well, I would wnat to know which “conduct” LCpl JM was speaking of.  I mean, the guy was charged with rape.  I think most of us would agree that it is PGOD.  But were they mincing words regarding the adultery and 120 offense?  
    Either way, the prudent CA dismisses the entire case.  But prudence and 120 left the station a long time ago.  

  6. k fischer says:


    That is a good point.  The TC kept on referring to the ‘incident’ and how it affected morale.  Was he referring to the rape or the adultery?  Of course, defense counsel came in on cross and made the argument for the Government:

    “DC: Lance Corporal, has it affected morale the fact that you have one person charged for adultery at a general court-martial and the other person that was part of the adultery has not received anything whatsoever? Has that affected morale? 

    W: I would have to say so. Yes, sir.”

    Upon further reading of the opinion, I think I know why the panel convicted Lucas of rape:

    “The Appellant did not take the stand in his own defense at trial.”

    Does anyone else share my opinion that when you have a good client with good military character, you should put him on the stand?  He has already admitted to the first element of adultery, so he is probably going to get convicted of that charge.  Why not put him on the stand?  The TC wasn’t there.  What is h/she going to do?  Yell, “Liar, liar pants on fire!”?  If they like him enough, they will probably jury null the adultery.

    Plus, whenever I put my client up, I look over at the TC after they have sworn my client, and every time except once, they are ripping off a sheet of paper to take notes and the other is writing their cross examination for the first time.  The cross examination is rarely effective, and the client, who has been crossed by defense counsel before the trial, looks really good when he holds his own against a well trained military prosecutor.

    I had the president of a panel ask the military judge twice whether or not the accused was going to talk to them.  We should have asked for a mistrial, but thought that the Judge’s instruction was strong enough to convince him that if he needed to hear from the accused then he probably had reasonable doubt.  I had a Battalion Commander tell me that he tried to talk to my client who proceeded to lawyer up, and at that point he was convinced my client was guilty and had no integrity.  It doesn’t matter how many times a judge tells the panel not to form an adverse opinion against the accused if he fails to take the stand, they are going to hold it against the accused. 

    In a he said\she said case, the panel wants to hear the accused say that he did not rape her.  Otherwise, they might likely go with what she said, even if there is an exculpatory video that they get to see.


  7. rob klant says:

    Another bill for someone like Congresswoman Speier to sponsor:  eliminate the CCAs’ Art. 66(c) powers to review for “factual sufficiency” (at least as the term is currently interpreted and applied)?

    Is there any good reason in this day and age to make the prosecution bear the double burden of proviing its case at trial and then of having to “personally convince” a majority of the CCA judges of the appellant’s guilt beyond a reasonable doubt?

    Especially in cases, like so many cases of sexual assault, where guilt or innocence rest on critical determinations of the credibility of witnesses who the CCA will never have the luxury of hearing and seeing in person?

  8. k fischer says:

    Rob Klant,

    Yes, there is a good reason.  When the pendulum has swung so far in favor of an alleged victim to the detriment of an accused’s right to a fair trial, right of confrontation, right against self incrimination, etc., I find it comforting that a man who should not have been convicted by a panel beyond a reasonable doubt will only have to spend part of his sentence in jail and will not have to register as a sex offender upon his release. 

    In this case based on the facts in this opinion, I do not see how the panel could find this accuser’s account credible.  When the entire case is based on this one person’s word, I would prefer that a possibly guilty man go free than a reasonably innocent man be convicted.

    Does anyone who read the opinion think that this accuser is credible enough to sustain a conviction beyond a reasonable doubt?

  9. Charlie Gittins says:

    Members have been so brain-washed with the SAPRO crap that they actually believe that a woman who has had any amount of alcohol at all cannot consent.  They are fed crap about counter-intuitive prosecutrix conduct and lap it up like a hungry puppy because they have been indoctrinated into the prosecutrix-friendly world of feminist propoganda.  Women don’t lie about rape.  Really?  I call BS on that one.  At least appellate judges know better than to accept at face value the crap the DoD is feeding the rank and file. 

    And I agree with K fischer about putting a client on the stand . . .   I think in this bizarro world, you have to put the client on the stand in a sex case because the members will need to be convinced of innocence rather than applying reasonable doubt, given the thoroughness of the brainwashing and their slavish adherence to orders and “suggestions” from the Commandant, etc.        

  10. rob klant says:

    But, K fischer, the court’s opinion does not rely on any alleged legal error — Constitutional or otherwise — which materially prejudiced the accused’s substantial rights.  It rests on nothing more than the fact that that three judges of the NMCCA were not personally convinced of the appellant’s guilt.  

    Yet, at least four other persons who were properly qualified and selected to serve as members of a court-martial — and who were present personally throughout the trial to hear and see each witness who testified –did believe, beyond a reasonable doubt, that the accused was guilty.

    I don’t understand why NMCCA’s decision should necessarily be viewed as being more reliable or accurate than the members’ original decision.  And, I don’t think the general public would necessarily be comforted by knowing that the otherwise legal decision of the members can be second-guessed by appellate judges. 

  11. Charlie Gittins says:

    Rob Klant:

    Are you for real?  What is your experience?  You sound like a boot LT with no real world experience.  Please tell us all how you can possibly believe in this politically charged, command influenced, pro-“victim” world that you can actually trust members to exercise their own actual discretion.   A CM at JAX had a whole bunch of members recently excused because of Gen Amos’ STUPID, unlawful and biased statements about sexual assault.  when the Commandant bends over and takes in in the a__ for reasons of PC, we are all screwed.   

  12. Dew_Process says:

    I echo Bill C’s observation that without having read the ROT, it’s hard to guage just how bad the facts had to have been in this case.  We know that they were “bad” based on the Court’s ordering the release of the Appellant at the end of oral argument without reading the opinion.

    Mr. Klant – would your opinion change if you knew that the Judge who authored the opinion is a female Marine?  I suspect she spotted BS overload a mile away.

    Charlie and KF – agree 100%  I’ve got a virtually identical scenario (sans text messages, but an IM message saying she “couldn’t remember if she consented or not, and didn’t remember taking her clothes off, but remembers being naked in bed with the Accused.”  His DC didn’t put him on the stand because he would have had to admit [OMG] the adultery, and so got whacked by the panel on the rape.

    Common sense cuts both ways – the “right to remain silent” is of course a constitutional standard.  But, as one member purportedly told the defense after trial, “if your guy didn’t rape her, why didn’t he tell us he didn’t rape her?  Keeping quiet when you’re looking at a possible life sentence doesn’t make sense.”  Unfortunately, in the current military environment, I tend to agree.

    So much for the presumption of innocence and the Constitution.

    I’d be interested in some female JAG input here just to get a different (perhaps) perspective.

  13. Dwight Sullivan says:

    Over at 31(b)log, Jim Clark has posted a commentary about this case in which he says NMCCA “appears to fall prey to a number of rape myths.”  In the course of a lengthy analysis, he adds, “it appears that the NMCCA is operating under now discredited ideas about victim behavior, and instead relies on rape myths to reject Cpl C’s testimony as ‘illogical.’Trauma victims do not always behave logically.”

  14. Zachary Spilman says:

    Another bill for someone like Congresswoman Speier to sponsor:  eliminate the CCAs’ Art. 66(c) powers to review for “factual sufficiency” (at least as the term is currently interpreted and applied)?

    Is there any good reason in this day and age to make the prosecution bear the double burden of proviing its case at trial and then of having to “personally convince” a majority of the CCA judges of the appellant’s guilt beyond a reasonable doubt?

    Let’s do this right after the President amends R.C.M. 917 to conform to Fed. R. Crim. Proc. 29. Particularly part (c):

    (c) After Jury Verdict or Discharge.

        (1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

        (2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.

        (3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.

  15. Ex TC on sabbatical says:

    I’ll let Rob defend himself as a 45 alum, multiple SDC and STC tours and after 20 years in miljus, countless trials and cases, now enjoying his second career. Sound familiar anyone? certainly foolish of him to post like that on caaflog though.

  16. anon says:

    Does anyone else have an issue with NCIS using an alleged rape victim to lie about pregancy in order to elicit a confession from the defendant? Without considering whether the alleged victim became a government agent for Article 31 purposes, NCIS handed the defense its “lying scorned female” defense.  Combine this with the destruction of the text messages and you are halfway to an aquittal.

  17. N says:

    Anon: Apparently only halfway, since he was convicted at trial…

  18. rob klant says:

    Foolish, but experienced?  Thanks, Ex TC, for the vote of confidence.

    Seriously, my questions weren’t intended as a comment on the background, character, or judgment of any of the persons rendering judgment in this case or whether their decisions were right or wrong. 

    I’m simply questioning why CCA judges still have this “awesome, plenary” power– affording military accused a substantial right enjoyed by no other defendant in any other jurisidiction in the United States, as far as I’m aware — especially in cases like this, where the court’s opinion reflects that the judges are doing nothing more or less than the average members at trial are presumptively qualified to do.

    I don’t think it requires any particular level of experience to recognize the uniqueness of the situation.  And — at a time when the most fundamental aspects of our practice are coming under scrutiny — I think it would be foolish for the question NOT to be examined in a forum like CAAFLOG.

    Personally, too, I think we better be prepared to offer a better answer than “we can’t trust the members to exercise their own actual discretion”, unless we in fact agree with the critics who assert that the military justice system can’t be trustetd to try these – and how many other? — types of cases at all.   

  19. k fischer says:


    Admittedly, I have no appellate experience.  Of the two Servicemembers whom I represented at Court Martial who have a right to an appeal at ACCA, I tell them to call a civilian defense counsel whom I trust to zealously represent them, even if it results in an IAC allegation.  But, I understand that if the Appellate court, after taking into consideration that the panel members saw the witnesses and heard the evidence, does not believe that the accused is guilty beyond a reasonable doubt, then they can overturn the conviction.  I don’t think that is a bad mechanism, as long as the appellate judges believe the conviction, after reviewing the ROT, is so unjustified that it smells like three day old unrefrigerated rotten fish.  The opinion in US v. Lucas was unanimous, and I think that the conviction stinks.

    You have a he said/she said consent case where the accuser delayed reporting, gave inconsistent accounts to her friend, texted her alleged rapist and continued their friendship after a brutal rape, went to LA and partied after being brutally raped, came back and was facing disciplinary action for being disheveled (motive to fabricate to deflect blame), did a pretext phone call where she does not mention anything remotely resembling force, agrees on the phone that she was also responsible for a made up pregnancy, the accused does not take the stand to deny her story, and he gets 24 months and a BCD for a brutal rape as described by the accuser.  While I drink the legitimate grape flavored Kool Aid, I do not have any confidence in the conviction and would not be concerned if Lucas moved next door to me without having to register as a sex offender.

    Reversals for insufficiency appear to be quite rare, based on Jim Clark’s post at Article 31(b) blog, referenced by Dwight Sullivan above.  I agree that most convictions should stand.  However, the facts in this case lead me to believe that no reasonable jury should have convicted Lucas.  

  20. k fischer says:

    As for Mr. Clark’s post on 31(b), I can accept a counterintuitive behavior argument if there was only one or two behaviors that are swimming against a wave of overwhelming evidence.  But, when every aspect of an accuser’s behavior or testimony has to be explained as “counterintuitive,” and we have no physical evidence to support her counterintuitive story, then how does that meet a guilt beyond a reasonable doubt standard?   It simply doesn’t. 

    And if a guilty person walks, then so be it because our system is designed to ensure that innocent men don’t rot in jail cells for something they did not do.  I like that system.  I’m glad that the NMCCA judges deciding Lucas’s fate unanimously voted to enforce that system, as well.

  21. stewie says:

    The problem with Mr. Clark’s post is that:

    he doesn’t actually give any real reasons why anything that they listed was facially invalid. He as much admits this when he says  “I do not claim that each of the Court’s reasons for disbelieving the victim were irrelevant to her credibility.” Instead he basically asks how they could overrule the panel.

    The easy answer is, because they can. Panel convict innocent accused and acquit guilty accused. They make mistakes. We, properly, allow the latter to happen as a matter of principle. We also, properly, try to minimize the former from happening.

    IMO, the Court’s points were valid insofar as the standard is BRD. Maybe she was raped just as she says, but the problem is given the very high standard of BRD, it is difficult to convict someone of rape when the only real evidence against them is the word of an accuser without being really confident in the credibility of that accuser.

    Consistent reporting, logical agreement of the report, demeanor, and contact with the Accused after the incident are all important ways of determining credibility unless we are going to with, well she reported it, so it’s probably true.

  22. Bridget Wilson says:

    Spoke with Klant this morning. He appears to still exist in San Diego. I accused him of being a Hobbit, but he rejected that characterization. I am very sorry he retired because we did some seriously fun cases together. Perhaps his stint as an MJ turned him around to the dark side and brought out his dark past as a TC.He did spend his last AD at the RLSO.

  23. Phil Cave says:

    Zach, the defense already has, and the military judge already has the power to ask for a set-aside.  I have successfully filed Griffith’s motions.  In one it was interesting to see the members face when the MJ dismissed many of the charges they’d found the accused guilty of.  To their credit they sentenced the client, IMHO, on only the offenses left on the charge sheet.
    Please see United States v.  Griffith, 27 M.J. 42 (C.M.A. 1988).  Note the standard in a Griffith motion is legal sufficiency as applied by CAAF and not the Article 66 “factual” sufficiency applied by a CCA.
    It is a tough standard to meet.  But, in a case where the MJ denies a 917 motion and emphasizes that’s only because there’s a sniff of evidence, I will often make a Griffith motion.

    I will reserve comment, for moment about counter-intuitive psycho-babble, which is usually human lie detector evidence dressed up. 

  24. rob klant says:

    Well said, Mr. Cave.  But I don’t think your comment goes far enough.  Trial judges already have as full and broad a scope of authority to correct ANY legal error as the CCAs do — not simply an error of legal sufficiency — at least up until the authentication of the record of trial (and even up until the CA’s action, if the CA agrees to refer the case back to the court):

    As you note, though, trial judges don’t have the same authority as the CCAs to set aside findings on the sole basis that they disagree with the members’ findings. 

    How many defense counsel are availing themselves of this opportunity to correct alleged legal error at the earliest possible opportunity?

  25. Dwight Sullivan says:

    Over at 31(b)log, LtCol Devin Winklosky has joined the great Lucas debate.  His post is here:

  26. Dew_Process says:

    Congress gave the CCA’s this power as another means to combat UCI and with the current hysteria over anything male/female being a potential 120 violation, it is a valid check.

    In most civilian jursidictions, this “rape” allegation never would have made it out of the Grand Jury under these facts, so I think that it goes back to the question of, what impact did the Accused’s not testifying have on the panel?

  27. Atticus says:

    The panel did regurgitate old myths. “It is illogical to believe that a man weighing just over 200 pounds could accomplish these tasks against a female Marine, trained in Marine Corps Martial Arts, weighing 155 pounds, under the circumstances described in the record before us.”  Was the fact that she had MCMAP training in evidence?  And if so, how is that relevant to anything?  The best fix as is Zack Spilman noted; simply give MJs a rule that allows for NG verdict from the bench notwithstanding the panel’s gulity finding.  Give the defense and G a week to file briefs and argue it, etc. That way you get the accused out of jail earlier and do not have to wait until appeal.  Secondly, you make it an immediately appealable order if the judge upholds the Guilty verdict, allowing an expedited review at the CCA. I disagree that a MJ presently has the power to do that once a verdict is in.


  28. k fischer says:


    The panel did not rely on one “myth” to determine that the accuser lacked credibility.  It laid out a number of factors to show why her story was not credible enough to reach proof beyond a reasonable doubt, all of which individually could be debunked as a rape myth.  However, when every piece of evidence has to be explained away as counterintuitive victim behavior, then you have to look at the evidence as a whole.  

    What evidence is contained in the opinion that leads to guilt beyond a reasonable doubt?  There is no physical evidence of a struggle, in which she was fighting with all her might.  There are no other witnesses to the act.  The accused is credible.  You have her word, which is inconsistent, with nothing else to back it up.  With all those deriding the panel’s decision for relying on “rape myths,” tell me what would you have relied on to be convinced beyond a reasonable doubt? 

    Looking at the evidence as a whole, I think the panel made the right call. 

    As for changing the procedure to expedite overturning a conviction, that still doesn’t prevent a Judge from employing the “rape myths” to override the panel’s decision. I guess at least the Judge would have at least seen the trial and could make a call immediately.

  29. Atticus says:

    You make my point Fischer.  We don’t know from the opinion what the evidence was because the panel relies only on what it wanbs to rely.  We don’t have the entire record, so perhaps that is why we cannot seem to figure out why the members who actually observed the testimony and the demeanor of the witnesses were such “idiots.”  And I don’t recall the accused testifying – what are you reying on to conclude he was credible? NMCCA does this all the time on F/S cases.  They parse out portions of the evidence that support the way they want to go. And last I checked, the judges school tells judges they have no power under 917 to override a finding.  A rule change would fix it easily.  That way, you give the judge – who sat in the courtroom and observed the demeanor and testony of the witnesses – the power to make a F/S finding.

  30. k fischer says:


    I agree that we don’t have the ROT, so perhaps the judges decided to leave out everything that shed a negative light on the accused.  I don’t know about the history of the NMCCA parsing out adverse info from the ROT to support the way they want to go because I don’t have any appellate experience.

    The accused did not testify, but the Government apparently admitted the video, in which the accused made an exculpatory statement. Couldn’t the panel have made a credibility determination based on the video?

    I agree that a rule change would be in order to allow the Judge to make an F|S finding. 

    But, assuming that the facts contained within the panel’s opinion accurately reflected the evidence contained within the ROT, would you agree that the panel made the right call?  If not, then what would you have found?  Everything point that the Appellant brings up is a rape myth, so no matter how improbable we believe her story to be, it must be true because he was convicted by a jury?

    If there is no physical or third party eyewitness evidence supporting the alleged victim’s word and everything that comes out of her mouth has to be explained away by accusing someone who doubts her as falling victim to rape myths, then it just seems like Article 120 is a strict liability statute.

  31. rob klant says:

    Remember, too, that the Military Judges Benchbook at 2-5-12 instructs members that “In weighing and evaluating the evidence [they] are expected to use [their] own common sense and knowledge of the human nature and the ways of the world.”  

    This instruction would seem to authorize members to rely even on “rape myths” if these so-callled myths constitute the members’ own common sense and knowledge of the human nature and the ways of the world.

    If members are entitled to rely on these, then I would think the CCA judges could as well when they are acting as a trier of act under Art. 66(c).

  32. Atticus says:

    I jyst think the F?S analysis is unweildy and would be better left to the trial judge since he/she sat in the courtroom and saw the witnesses. You could put in the rule change that the MJ, upon motion, in addition to ruling on the F/S of the evidence, must also make credibility findings, etc.  Then when it comes to CCA, they have the added  benefit of the MJ’s credibility findings, one way or another.  They can adopt them or reject them.