CAAF decided United States v. Jasper, No. 13-0013/AR, 72 M.J. 276 (CAAFlog case page) (link to slip op.), on June 4, 2013, finding that the trial judge erred when he prohibited the Defense from introducing statements made by the child victim to her pastor concerning her allegations that the Appellant sexually abused her, after the trial judge concluded that the victim did not waive the clergy privilege despite both her and her mother giving the pastor permission to disclose the statements to the trial counsel. CAAF reverses the Army CCA and sets aside the findings and sentence, and authorizes a rehearing.
Judge Ryan writes for a unanimous court.
The Appellant was convicted contrary to his pleas, by a general court-martial composed of officer and enlisted members, of one specification of indecent conduct, two specifications of committing an indecent act with a child, and one specification each of knowingly possessing child pornography, knowingly receiving child pornography, persuasion and enticement of sexually explicit conduct for the purpose of producing visual depictions, and obstruction of justice, in violation of Articles 120 and 134. He was sentenced to confinement for 23 years (reduced to 18 by the convening authority), total forfeitures, reduction to E-1 and a dishonorable discharge.
The convictions are all related to sexual conduct between the Appellant and his stepdaughter [BK], alleged to have occurred in 2006-2007, and then again in 2009. Prior to trial, the Trial Counsel notified the Defense that BK’s pastor had disclosed (with the permission of both BK and her mother AJ), to the Trial Counsel, that in 2007 BK told the pastor that she had fabricated the earlier allegations to get attention. The Defense then sought to call the pastor at trial to testify about this admission, but BK and AJ asserted the clergy privilege (having been advised by the Trial Counsel that they could do so).
The Defense asserted that the privilege was waived when the pastor was authorized to disclose the communications to the Trial Counsel. But the military judge found no waiver and applied the privilege to prevent the testimony of the pastor or any examination regarding the statements made to the pastor. BK and AJ then testified at trial, constituting the principle evidence against the Appellant, and the Trial Counsel argued in closing that BK was credible, saying:
“you can’t make [BK’s testimony] up,” “the kinds of details [that BK recalled] that if you’re making something up, just don’t come out,” and “[i]t went down just the way she explained it.”
Slip op. at 6.
Before the Army CCA the Appellant argued that the military judge abused his discretion by finding no waiver, but the CCA disagreed, noting that BK and AJ believed that they were only authorizing disclosure to the Trial Counsel and they did not realize that they had the ability to keep the communications confidential, and concluding that their authorization to the pastor did not constitute a knowing waiver of the privilege. Judge Ryan begins her analysis by plainly refuting this conclusion:
Contrary to the ACCA’s holding, where, as here, the privilege holder, in the absence of factors like coercion or trickery, affirmatively consents to the disclosure of the privileged communication to a third party, the privilege is waived, regardless of whether the privilege holder was aware that: (1) the communication was privileged, or (2) consenting to the disclosure of the communication waived the privilege.
Slip op. at 8. Her opinion cites cases discussing “the fundamental principle that the public . . . has a right to every man’s evidence,” (Slip op. at 10 (quoting Trammel v. United States, 445 U.S. 40, 50 (1980))), and the reality that “privileges ‘run contrary to a court’s truth-seeking function,’ [so] they are narrowly construed.” Slip op. at 10 (quoting United States v. Custis, 65 M.J. 366, 369 (C.A.A.F. 2007)). She also notes that CAAF has “never conditioned waiver on the privilege holder’s awareness of the privilege.” Id. Rather, “whether a waiver is valid turns on whether the disclosure was voluntary,” slip op. at 11, and unlike a waiver of constitutional rights, a waiver of a privilege under Mil.R.Evid. 510(a) need not be “knowing” and “intelligent” slip op. at 12. Applying this law to the facts of this case, CAAF finds that the clergy privilege was waived, and that the military judge’s ruling was an abuse of discretion.
Judge Ryan then turns to the question of whether the error implicated the Appellant’s constitutional rights, meaning that the conviction survives only if the Government establishes that the error was harmless beyond a reasonable doubt (as opposed to establishing merely that there was no material prejudice to a substantial right; the Article 59 statutory standard for non-constitutional preserved errors). Because the erroneous ruling deprived the Appellant of the ability to use BK’s statement about fabricating the earlier allegations to impeach her trial testimony with cross-examination or otherwise, and because BK’s testimony was a crucial part of the Government’s case against the Appellant, CAAF finds that the error is constitutional, violating the Appellant’s rights to confrontation and due process.
Because this is a constitutional error that “improperly limit[ed the Appellant’s] opportunity to present exculpatory evidence through direct testimony and cross-examination, ‘[t]he burden is on the Government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty.'” Slip op at 16 (quoting United States v. Collier, 67 M.J. 347, 355 (C.A.A.F. 2009). Judge Ryan explains that CAAF “need not conclude that Appellant’s defense would have succeeded,” but rather must determine if the Appellant was deprived of his “best defense” that if it had been presented might “have tipped the credibility balance in Appellant’s favor.” Slip op. at 16 (emphasis in original). CAAF determines that the Appellant was so deprived, with the dispositive fact being that “while the Government’s case was not weak, it hinged on BK’s credibility.” Slip op. at 20.
And while that is enough to resolve this case, Judge Ryan adds something more:
Furthermore, despite knowing of BK’s statement that she had made the allegations up, adding insult to injury, the Government exploited the military judge’s erroneous evidentiary limitation in closing argument, arguing that “you can’t make [BK’s testimony] up,” “the kinds of details [that BK recalled] that if you’re making something up, just don’t come out,” and “[i]t went down just the way she explained it.” These comments compounded the harm that the military judge’s error created.
Slip op. at 20-21 (marks and citation omitted). It’s not clear if this was the same trial counsel who (quite properly) disclosed the statement to the Defense, and then (not at all improperly) successfully argued that it was still privileged despite the disclosures, but assuming that it was the same TC, two thoughts come to mind:
First, CAAF doesn’t identify the Trial Counsel by name. When I was a Special Assistant U.S. Attorney, I was told that a DOJ rule (written or unwritten, I can’t say for sure) required self-reporting to the Office of Professional Responsibility any time a DOJ attorney was identified by name in a judicial opinion. It was called getting “named and shamed,” and OPR would look into whether there was any misconduct. That’s not a factor in this case, as CAAF doesn’t identify the TC.
Second, I don’t know that there’s anything improper about this argument, and I’m inclined to say that it’s not improper at all. We don’t have the context for the statement to the pastor, but an argument for BK’s credibility based on the degree of detail in her testimony is unlikely to be successful (or “compound the harm”) unless the testimony of BK was very detailed. That makes BK either credible or imaginative, and I think it’s fair (or at the least not unfair) to argue either way. Especially when the judge permits the argument.
Even if BK once admitted to being imaginative…