In an unpublished opinion in United States v. Smith, No. 37863 (A.F.Ct.Crim.App. November 8, 2012), the AFCCA affirmed the convictions of the Appellant of “multiple sexual offenses involving his minor daughter, TDS” (resulting in a sentence of a dishonorable discharge, confinement for 27 years, forfeiture of all pay and allowances, and reduction to the grade of E-1), and denied a petition for a new trial that was based on the following facts:

In November 2011, about ten months after trial and a couple of months after payments under a waiver of automatic forfeitures would have ceased, the appellant’s daughter, TDS, signed a brief affidavit in which she recanted her in court testimony. She states that “none” of her in court testimony was true and that she was pressured by her mother and others to proceed. Based on the victim’s post-trial recantation, the appellant seeks a new trial.

Slip op. at 4. The court considered the extensive testimony of the girl, and the significant corroborating evidence, and reasoned:

Having carefully weighed the testimony at trial against the post-trial recantation of this young victim, we are not reasonably well satisfied that the testimony given by her at trial is false; therefore, the petition for new trial is denied.

Slip op. at 8.

12 Responses to “AFCCA unswayed by victim’s “brief affidavit in which she recanted her in court testimony””

  1. Dew_Process says:

    The problem here, and it is systemic, is that the Court’s decision is based upon two assumptions: (1) that the girls trial testimony was true; and (2) that her “recantation” was false.  While those assumptions may in fact be valid, their validity should be addressed – not by affidavit – by the crucible of a hearing.  DuBay hearings should not depend upon the whim of a panel of judges; and justice should not depend upon assumptions.

    But one thing here – ignored by the Court – is not an assumption.  The girl was willing to lie.  Whether it was at trial or by affidavit, both cannot obviously be true.  Justice should be more demanding than what happened here.  Just my 2 cents.

  2. Phil Cave says:

    Echo DP.

  3. Charlie Gittins says:

    I had a similar case at AFCCA where two neices had accused their USAF uncle of sexual abuse over a long period.  Plenty of reason to suspect they had been coached by their aunt’s mother, whose affair was disclosed by the USAF uncle in anger.  I did not do the trial level work, but the sentence was 1 year confinement (indicating residual doubt, IMO, since frank sexual abuse of two children over years ismuch more likely to result in a sentence like Smith received).  Both neices recanted by affidavit.  But, we had a DuBay hearing and the client’s petition for new trial was granted after the MJ concluded that their recantations were the truth.  Unsurprisingly, the USAF chose not to take the case back to trial.  But, I agree with DP, there should be a DuBay in this case as well; in my case the two girls corroborated each other . . .  but that was because they both had been coached by the same coach.   

  4. Bill C says:

    I have no idea where the “truth” lies in this case.  But it sure doesn’t help that AFCCA doesn’t either.  This case just looks bad, and leaves one with a very bad impression. Not that impression is what should guide results, but I have gotten DuBay hearings ordered on much less evidence than this. 

  5. SFC V says:

    From reading the opinion it seems to me that there were pictures that corroborated some of her testimony.  But I would agree that a hearing is appropriate because there may well be reasons for her recantation.

    “With the witnesses’ recantations, we do not know whether Amrine is actually innocent. We similarly do not know whether he is guilty, despite the final judgment in his case. The question is: which time were these three witnesses lying? When they testified against Amrine, or when they recanted? As Judge Benton aptly notes, facts do not prove themselves.
    What we do know is that all three witnesses – upon whom Amrine’s conviction and sentence of death solely depend – are liars. ”  Amrine v. Roper, 102 S.W.3d 541, 549 (Mo. 2003) (Wolff, J. Concuring)

    When dealing with recantations I don’t think it can be said any better than Judge Wolff did.       

  6. Just Sayin' says:

    Uh, did you miss the part about the chat logs and trading kiddie porn pics of hIs daughter?  He’s not challenging the facts of conviction, just the prejudice\service discrediting claims. Fail. 

  7. WWJD says:

    @JS Yes, he is challenging legal sufficiency.  It is in the part of the opinion that says “Legal and Factual Sufficiency”.  You are going off the AFCCA’s ridiculous para-phrasing of the case that Appellant believes molestation and CP is not service discrediting.
    But, perhaps you are right in that there appears to be strong collaborating evidence.  But I remember a similar case brought to the AFCCA were there was a recantation, and the evidence was even less than in this case (he-said she-said).
    The AFCCA decided a rehearing was not necessary because they believed that the Daughter was promised a Jeep.
    Plus the Daughter backed away from her recantation after the prosecutor “reminded her” that she could be prosecuted for perjury.
    Hmm…maybe a quick Google search for AFCCA, Daughter, and Jeep…..
    Oh yes, here it is:
    United States v. Beatty , Misc Dkt. 2006-03
    Oh, and one of the Judges was…dun dun dun, Judge Mathews – The same Christopher Mathews on this Blog?

  8. Cap'n Crunch says:

    WWJD: with all due respect, I think that Beatty is different.  In Beatty, there was a Dubay hearing.  And there is the issue of the daughter in Beatty admitting to Government Appellate Defense Counsel (I have to wonder the context of that conversation — was it recorded??) about the subsequent affidavit being a lie.  Again though, Beatty noted the inherent issue with recantations and needing to make findings of fact in referring the matter to a Dubay hearing.  The Military Judge did not find the recantation reliable at the hearing.  That is the job of the trier of fact.  Here, I think, the crux of the issue is that there was no Dubay hearing ordered.

  9. WWJD says:

    Oh you are correct, there was at least a DuBay hearing.

  10. Christopher Mathews says:

    WWJD:  Yup, that was a case assigned to my panel, and although I was not the author of the opinion, you may infer from the absence of a dissent that I concurred in it. 

    CC: You’re correct: there was a DuBay hearing in Beatty.  The judge who took the hearing found the victim’s recantation to be the result of parental pressure and bribery, and further found that her recantation was not believable. 

  11. Bill C says:

    Chris: And I was the appellate defense counsel.  I was not the counsel at the DuBay hearing. Had I been, the result might have been different. :)

  12. stewie says:

    Agreed, need a DuBay in cases like this unless it is beyond clear that the subsequent affidavit isn’t true, or you have overwhelming evidence in spite of the victim’s recantation to make said recantation unreliable.

    Have an adversarial process. It’s not like these recantations happen every other week.