Opinion hereUnited States v. Solomon, __ M.J. __, No. 13-0025/MC (C.A.A.F. May 8, 2013).  Judge Stucky wrote for a unanimous court, holding that the military judge abused his discretion by admitting evidence under Military Rule of Evidence 413.

10 Responses to “CAAF decides Solomon”

  1. Atticus says:

    Classic legal realism.  The court did not like the case so they found a way to bounce it.  The evidence of this is in the incredible nit-picking of the judge’s findings of fact:  First, the military judge found that “a preponderance of evidence establishes as a fact that “in mid-November, 2009, at night or in the early morning hours, the accused broke into the barracks rooms of two sleeping female Marines.”  In fact, no question existed from the evidence presented to the military judge as to the timeframe of the assaults. The evidence before the military judge at the Article 39(a) hearing included two unequivocal statements made by LCpl B and LCpl R under oath: LCpl B stated that she awoke to the intruder “[a]t approx. 230-300 [sic] in the morning,” and LCpl R stated that she “woke up around 0230-0300″ when her roommate cried out. The uncontroverted evidence before the military judge was that LCpls B and R were assaulted between 2:30 and 3:00 a.m.”  So if the judge would have left out the words “at night” from that finding of fact, it would NOT have been an abuse of his discretion? And then this: “The military judge went on to find, as fact, that “[w]hen [LCpl R] awoke, [Appellant] ran out of the room, got in his car, and promptly drove away, ultimately receiving a citation for driving under the influence of alcohol.” However, none of the evidence presented supports the military judge’s finding that Appellant got in his car and promptly drove away.”  So if the judge would have left out the words “and promptly drove away,” it would NOT have been an abuse of discretion? This opinion flat-out ignores droves of precedent that the fact-finder may draw reasonable inferences from the evidence. It’s apparently getting close to vacation time up at CAAF.

  2. Peanut Gallery says:

    The court did not like the case because it was a bad case.  No nit-picking is necessary.  2 victims stated they were assaulted at 0230-0300.  PMO says Appellant was in custody from 0158-0326.  If I’m the MJ, I take judicial notice of every college physics 100-level course in America, in which we all learned that solid-state matter cannot occupy two different places at the same time.

  3. SFC V says:

    I think it is rather unreasonable to draw an inference that one committed a crime in the face of an unassailable alibi.  Being in jail is the second best alibi next to being dead.  

  4. stewie says:

    Actually, the double-slit experiment shows us that solid matter (molecule sized and below) can be in two places at once and even interact with itself so long as we don’t directly observe which slit the matter passed through.
    However, human beings are too large for these quantum effects to become apparent so, yeah, probably a good alibi.

  5. Atticus says:

    PG,SFC, Stewie-Thank you for giving examples of legal realism.  Hyperbole and snippy observations only show a nice sense of the jocular.  Alibis – “unassailable” or otherwise, are free to be rejected like any other type of evidence. Unless you have something saying they are entitled to greater weight than anything else.  I guess you would like a rule that has everyone just walk out of the courtroom after one gets thrown into the evidence.   Last time I checked, they get rejected quite often.  And if it was such strong evidence, why did the members reject it?  CAAF engaging in a little of their own fact-finding, eh?  But hey, the supposed prohibition againt them doing that never stopped ’em before.

  6. SFC V says:

    So you’re saying that even though it is clear that he was in custody at the time the victims say the attack occurred you would still find it more likely than not that he committed the first two crimes?  Seriously? 
    Under 413 the judge, not the panel, is the fact finder with respect to the prior sex assaults.  The judge must find by a preponderance of the evidence that the accused committed the previous offenses.  It goes to the admissibility of the evidence and not the weight.  
    I’m a prosecution guy but I think we should rarely if ever admit evidence of a defendant’s prior misconduct into evidence as the prejudicial effect it has on a panel is huge.  Predicate offenses, a defendant who testifies, and cases where the  modus operandi of the prior and current crimes are extremely unique and match.  We should convict people of current crimes based on evidence that “they did it” and not because they committed other crimes in the past. 

  7. k fischer says:

    Sounds to me like the trial judge did not like the accused, so he found a way to admit the evidence.   (After reading the facts in the NMCCA opinion, I share the that the accused sounds like a sicko.)
    That being said, the question is whether or not the trial judge abused his discretion in letting in the allegations regarding the acquittal.  It seems that any inferences drawn that Solomon was in the accusers’ room when he was in custody of the MP’s would have been found to be unreasonable by C.A.A.F., and they would have come down the same way.   Another question is why didn’t the military judge permit the factfinder to consider the accused’s guilty plea regarding the masturbating while watching female Marines sleep?  Here is the unpublished NMCCA opinion.  It seems that CAAF would be less likely to say the admission of that evidence was an abuse of discretion because he pleaded guilty to that offense.  They still had their expert saying he had some kind of “watching people sleep fetish.”
    Or if you are the Government, why not try the case and get a conviction for the wrongful use of ecstacy.  If he is acquitted for the sex offenses on the male Marine, you get the conviction from the Summary Court martial in from when he admitted he was masturbating outside the female Marine’s barracks.  After hearing about the conviction, the panel will hammer him on the ecstacy use to compensate for acquitting him.  
    I’ve shaken my head at some of the motions the Government brings and thought, “Do you really want the judge to admit this evidence and screw up a perfectly good conviction that you could have gotten otherwise?”  Then, of course, I do a facepalm when the judge goes along with it.

  8. Some DC says:

    Atticus–did you listen to the argument?  The members didn’t hear about it.

  9. Atticus says:

    Sounds like a good case to send up to the Hill so they can add it to their stack.

  10. Peanut Gallery says:

    No legal realism.  Just reality.  As pointed out by others, the members did not know.  It’s an interlocutory question.  And a determination by members should be no more unassailable on appeal than an uncontroverted alibi.  
    Actually, I’m surprised that this even passed a 403 test, let alone 413.