CAAF has declined to intervene in the ongoing Army court-martial of Private Hernandez, in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the Private of sexual assault of a child and sexual abuse of a child in violation of Article 120(b) (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125 due to concern over the application of the defense of mistake of fact as to age. I discussed the Army CCA’s two decisions in the case in this post (where the court ultimately granted the Government a writ of prohibition) and Private Hernandez’s writ-appeal to CAAF in this post. But CAAF’s daily journal for last Wednesday has this entry:

Misc. No. 15-8001/AR.  Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees.  CCA 20140293.

On consideration of the writ-appeal petition and motion for stay, it is ordered that said petition is denied without prejudice to Appellant’s right to raise the issues asserted during the normal course of appellate review, and that said motion is denied as moot.

Additionally, CAAF has granted review in another case involving the corroboration rule (last month the court granted review of a corroboration issue in United States v. Adams, 14-0495/AR (discussed here)):

No. 14-0658/AR. U.S. v. Corey J. BENNETT. CCA 20111107. Review granted on the following issue:

Whether the military judge erred by allowing an expert to repeat testimonial hearsay, denying Appellant’s right to confrontation, and if he so erred, whether Appellant’s confession to marijuana use was adequately corroborated.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Bennett is available here. A three judge panel of the CCA considered Appellant’s convictions by a special court-martial composed of officer members, contrary to his pleas of not guilty, of two specifications of unauthorized absence and one specification of wrongful use of marijuana in violation of Articles 86 and 112a, for which he was sentenced to confinement for three months, reduction to E-1, forfeiture of $978.00 pay per month for three months, and a bad-conduct discharge. The panel reversed one of the unauthorized absence convictions “because the government failed to prove that he was absent from the unit alleged.” United States v. Bennett, No. 20111107, slip op. at 2 (A. Ct. Crim. App. Apr. 28, 2014). But then the panel divided sharply over Confrontation Clause issues in the Government’s evidence supporting the drug conviction.

The CCA’s opinion explains that:

The government’s case with regard to appellant’s wrongful use of marijuana consisted of the following evidence. First, in a pretrial statement made to his company commander, appellant admitted he had used marijuana approximately one to two weeks prior to 26 July 2011, the date he returned from AWOL status. Second, the government called Dr. CO, the Chief of Certification and Litigation at the Tripler Army Medical Center Forensic Toxicology Drug Testing Laboratory [hereinafter Tripler], who testified that, in her expert opinion, a laboratory document packet, which contained primarily machine-generated data, indicated that a urine sample with the laboratory accession number (LAN) T11H0085019 tested above the DOD cutoff level, and therefore “positive” for tetrahydracannabinol (THC), an active ingredient of marijuana or the cannabis family. Third, Pros. Ex. 6, a “Specimen Custody Document” contained on Department of Defense Form (DD Form) 2624, indicated that this LAN number was matched with appellant’s social security number. Finally, the government offered the laboratory document packet itself, absent the cover certification page, as Pros. Ex. 7. The military judge admitted both Pros. Ex. 6 and 7.

Slip op. at 4. Two of the three judges (Judges Brogerding and Lind) found no error in the admission of the testimony of the expert, concluding that “Dr. CO’s testimony established that her independent expert opinion was based on a review of and reliance upon the non-testimonial, machine-generated data contained in the laboratory document packet.” Slip op. 7. They did find error in the admission of prosecution exhibits 6 and 7 because the exhibits “contained inadmissible testimonial hearsay” because prosecution exhibit 6 “indicated ‘the laboratory results . . .were correctly determined by proper laboratory procedures, and they are correctly annotated'” and prosecution exhibit 7 “plainly states appellant’s LAN tested ‘positive’ for THC.” Slip op. at 8 (omission in original). But they found this error harmless beyond a reasonable doubt after applying the balancing test from Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Slip op. at 9-11.

However, the third judge (Judge Krauss) dissented from the majority’s conclusion about the expert’s testimony. He found that

Much like the case in United States v. Porter, the expert here never “specifically interpret[ed] or rel[ied] on the machine-generated portions of the [laboratory report] to independently conclude that [appellant’s] sample had tested positive for . . . THC.” 72 M.J. 335, 338 (C.A.A.F. 2013). Rather, here the government asked the witness whether “based upon the screening and the gas chromatography and mass spectrometry, GCMS results, [she] recall[ed] what those results for Prosecution Exhibit 7 for identification [were] [sic].” (emphasis added). The expert then merely reported the results described by the laboratory packet.

Slip op. at 12. As a result, Judge Krauss would reverse the drug conviction because:

The expert called to testify was never asked and never testified to the independent opinion necessary to serve as a basis upon which to corroborate the appellant’s admission or otherwise convict the appellant.

Slip op. at 12.

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