In an unpublished opinion in United States v. Stout, No. 20120592 (A.Ct.Crim.App. Jul. 25, 2014) (link to unpub. op.), the Army CCA reverses the appellant’s pleas of guilty to one specification each of abusive sexual contact with a child, indecent liberties with a child, and possession of child pornography, in violation of Articles 120 and 134, for which he was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a bad-conduct discharge. Judge Borgerding writes for a three-judge panel of the court.
This passage from the opinion’s concluding section describes the case best:
As we stated in United States v. Le:
In cases such as appellant’s, we agree with Judge Trant’s observation in United States v. Pecard: “The spectacle, where both counsel take hold of appellant’s arms while the judge grabs the ankles and together they drag appellant across the providence finish line, is not only troublesome, but, as demonstrated by the result in this appeal, in the end, futile.”
59 M.J. 859, 864 (Army Ct. Crim. App. 2004) (quoting United States v. Pecard, ARMY 9701940, 2000 WL 35801828, at *5 (Army Ct. Crim. App. 7 Dec. 2000) (mem. op.)).
Slip op. at 10-11. You can read the facts of the case in the opinion and ask yourself if the appellant’s encounters with his 14-to-15 year old stepdaughter were innocuous or not. But one part really struck me: the CCA notes that in his unsworn statement
Appellant told the military judge, “in [his] opinion, at the time” he was just “being a parent” and it was only after his defense counsel explained the law to him that he understood he had done something wrong.
Slip op. at 6. Since both abusive sexual contact with a child and indecent liberties with a child require specific intent, and possession of child pornography requires knowledge, it’s troubling that a defense counsel would convince an accused of his intent after the fact.