In two recent decisions on Government interlocutory appeals under Article 62 the Air Force Court of Criminal Appeals splits the difference, granting one appeal and denying the second. Both cases involve sexual assault allegations, both cases involve evidence that was lost in part due to Government inaction, and both opinions are authored by Judge Weber.
The first case is United States v. Yarber, Misc. Dkt. No. 2013-25 (A.F.Ct.Crim.App. Feb. 20, 2014) (link to order). The appellee is charged with offenses that include two specifications of abusive sexual contact in violation of Article 120. The charges are related to the appellee’s sexual contact with the alleged victim while the two of them were at an on-base dining facility. The victim reported the contact and was interviewed by law enforcement. During the interview she reported that the appellee sent her inculpatory text messages. Law enforcement didn’t retain the phone or do a forensic search, and the phone was eventually lost. However, a Security Forces patrolman did handwrite copies of the messages.
Surprisingly, the military judge responded by prohibiting the alleged victim from testifying at all: “At a pretrial session, the military judge suppressed all testimony from [the alleged victim] after determining the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act when [her] cell phone was lost.” Order at 3. Reversing this ruling, the CCA rejects all three bases after noting that “the military judge orally ruled on the defense’s motion,” and “[h]e did not issue findings of fact – oral or written – and he merely referred to the evidence generally in explaining his ruling.” Order at 5. Key to the CCA’s conclusion is that:
[the patrolman’s] transcription of the text messages provided comparable evidence to the lost cell phone that served as an adequate substitute. TSgt BB testified her transcription of the text messages was “98 percent accurate,” with only one alteration that did not change the substance of the messages. A substantially verbatim transcript of text messages is the very definition of “comparable evidence.” The military judge’s analysis completely ignores the fact TSgt BB copied down the text messages essentially verbatim.
Order at 6 (citations omitted). The court also notes the largely inculpatory nature of the messages: “it is difficult to see how the entirety of the text messages – which contained several admissions by the appellee – could have been ‘favorable to an accused’ and therefore exculpatory.” Order at 5. The CCA’s final conclusion is “the military judge abused his discretion in finding the Government violated Article 46, UCMJ; R.C.M. 703; and the Jencks Act. As no violation occurred, there are no grounds to suppress SrA EH’s testimony.” Order at 8.
But it’s a very different story in United States v. Seton, Misc. Dkt. No. 2013-27 (A.F.Ct.Crim.App. Feb. 24. 2014) (link to order) where the military judge dismissed the charge with prejudice as a remedy for the Government’s failure to preserve the video recording from a military dormitory’s surveillance system.
The appellee is charged with one specification of sexual assault in violation of Article 120, “alleging the appellee caused bodily harm to Airman First Class (A1C) BB through nonconsensual vaginal intercourse.” Order at 1. The facts of the “nonconsensual vaginal intercourse” are that:
In the weeks leading up to her birthday, A1C BB and the appellee engaged in some amorous activity short of intercourse on more than one occasion. The night of her birthday, A1C BB entered the appellee’s room and they talked for a short period. They progressed to kissing and then sexual intercourse, which A1C BB agreed was initially consensual. A few minutes after the intercourse began, however, she told the appellee “we shouldn’t be doing this,” because she had a boyfriend, and she wanted to stop, or words to that effect. She later reported that, in her mind, the intercourse (which she said lasted a total of five to ten minutes) was nonconsensual starting when she made these statements. According to A1C BB, the appellee continued for another 30 to 90 seconds past that point before intercourse concluded. Shortly after this incident, A1C BB reported it to her friend and then her boyfriend before making a formal report alleging the intercourse (or some portion thereof) constituted a sexual assault.
Order at 2 (emphasis added). This looks like the so-called “one thrust” theory (i.e., “just one thrust after she says ‘no,’ and it’s sexual assault”), and its weaknesses as a basis for a sexual assault prosecution are obvious. It’s also a terrifying distortion of the law. Of course consent can be withdrawn, and consensual encounters can become non-consensual when one party goes too far, but human sexual encounters just don’t turn on and off like a light switch. Especially mid-coitus.
The appellee was interviewed by law enforcement and gave a statement in which he stated that the encounter was consensual and he mentioned “a video surveillance system in the dormitories [that] would confirm certain aspects of his account about their interaction before and after the alleged sexual assault, and he voiced support for agents to retrieve the video.” Order at 2. The agents viewed the video but did not obtain or preserve a copy, and 14 days later it was automatically overwritten (additionally, an intervening typhoon reset the recording system). Later, at the Article 32 pretrial investigation, “Trial counsel erroneously responded ‘the video cameras at the dorm were not working that night due to typhoon damage.'” Order at 3.
A few months after this, the Defense produced an affidavit from a Technical Sergeant (TSgt) who was the dormitory leader and who had shown the video to the law enforcement agents. The affidavit explained that the video system was functioning at the time of the encounter, and the TSgt later testified from memory that “portions of the video . . . contradicted [the alleged victim’s] previous statements in at least three respects.” Order at 3.
On the basis of this testimony, the military judge concluded that the Government’s failure to preserve the video did not violate Article 46, nor was it the product of bad faith, but that the Government violated R.C.M. 703(f)(2) (which addresses “evidence is of such central importance to an issue that it is essential to a fair trial). He concluded that because the alleged victim’s credibility “was an issue of central importance in the court-martial,” it was appropriate to dismiss the charge with prejudice.
The CCA affirms the judge, finding that the video is of central importance:
The military judge reasonably determined A1C BB’s credibility was a central issue in the case and the video may have supplied a basis to impeach A1C BB’s earlier statements about the incident. In short, only two people know for certain what happened in the appellee’s dormitory room; no other direct evidence is available concerning what transpired in that room. Video that apparently would have directly impeached the credibility of one of those two people is reasonably categorized as “of such central importance to an issue that is essential to a fair trial.” R.C.M. 703(f)(2).
Order at 6. Additionally, the CCA determines that testimony is no substitute for the video. Quoting the military judge’s ruling, the CCA notes that, “The old adage, “A picture is worth a thousand words,” comes to mind at this point.” Order at 7.