It’s hard to decide whether to laugh or cry when reading United States v. Adams, 74 M.J. 589, No. 20140377 (A. Ct. Crim. App. Jan. 26, 2015) (link to slip op.). But the case is a novelty for sure.

The appellant twice absented himself from his unit, one time for about 3 months and the other time for about 3 years. For these absences he was charged with desertion; an offense that requires intent to remain away permanently. But the appellant maintained that he always intended to return, and at a general court-martial composed of a military judge alone he pleaded not guilty to the charged desertions, but guilty to the lesser included offense of unauthorized absence.

The Government then proceeded to trial on the greater offense of desertion for both absences. Yet the trial counsel gave no opening statement, presented no evidence, and immediately rested. The Defense case consisted solely of the appellant testifying in his own defense, mainly by asserting that “he never entertained the intent to remain away permanently.” Slip op. at 3. The Defense then rested, and the Government presented no case in rebuttal.

The judge deliberated for 12 minutes before convicting the appellant of desertion for both absences. The adjudged sentence was confinement for 140 days, reduction to E-1, and a bad-conduct discharge.

The case was submitted to the Army CCA pro forma, or “on the merits,” meaning that the appellant submitted the case without any assignment of error and made no request for relief. Nevertheless, in a decision authored by Judge Krauss, the Army CCA reverses the desertion convictions.

Judge Krauss’ opinion focuses on two issues: RCM 917, and the appropriateness of basing a conviction solely on a judgment of an accused’s credibility.

For RCM 917, Judge Krauss notes that the Rule requires a finding of not guilty (on motion or sua sponte) if the evidence is insufficient to sustain a conviction. He then explains:

If ever there were a case for the judge to sua sponte address the propriety of a finding of not guilty under R.C.M. 917, this is it. To begin with, it is important to recognize that while an accused’s plea to a lesser-included offense may establish the elements it shares with a greater contested offense, the accused’s providence inquiry to that lesser-included offense, as the judge properly advised, cannot be used to prove any additional element required to establish the greater offense charged. Therefore, where the government immediately rested without introducing any evidence, there could be no more plain or obvious a scenario where a motion for a finding of not guilty should have been made. Instead, the judge invited defense counsel to call witnesses, and the defense counsel then called appellant to testify in his own defense.

Slip op. at 4-5 (citations omitted).

As for basing the desertion convictions on appellant’s credibility (or lack thereof) while testifying in his own defense:

Of course, an accused testifies at his own peril and his denials under oath may be rejected by the finder of fact and used against him when resolving his guilt. United States v. Pleasant, 71 M.J. 709, 712-14 (Army Ct. Crim. App. 2012), pet. denied, 72 M.J. 385 (C.A.A.F. 2013). However, an accused cannot be convicted on his testimony alone.

Slip op. at 5 (citations omitted). The crucial point is the Government’s burden to actually prove guilt. Judge Krauss explains that “at a minimum, where an accused’s testimony is used as evidence that he committed a charged offense, the government must introduce some evidence corroborative of the alleged offense before the fact finder is permitted to consider whether, in light of all the evidence, the government has proven an accused’s guilt beyond a reasonable doubt.” Slip op. at 5-6 (citations omitted).

And so Judge Krauss concludes:

Though the judge apparently rejected appellant’s denials at trial, assessed appellant’s self-interested testimony as incredible, and used the same to find the opposite of appellant’s denials true, it was a violation of the minimum guarantees of due process to convict appellant of the contested charge of desertion on the assessment of his credibility alone.

Slip op. at 7.

18 Responses to ““Appellant submitted the case upon its merits. And some merit it does possess.””

  1. (Former) ArmyTC says:

    Let’s say I don’t fault the trial counsel for phoning it in…let’s say I don’t fault the defense counsel for not jumping on the 917 motion…
    How on earth do the Chief of Justice and SJA not advise the CA to disapprove those findings?

  2. McLaughlin says:

    I don’t know all the facts, but a 3-year absence (ending in apprehension?) and an accused who chooses to testify, but is not believed by the fact-finder, seems to be a formula for “guilty.”
     
    PJM

  3. TBeckett says:

    ” How on earth do the Chief of Justice and SJA not advise the CA to disapprove those findings?”  As a community, we overlook how many weak attorneys are promoted on their strengths as officers.

  4. stewie says:

    That’s probably not fair.  Although I certainly have my issues with how promotions are done, I don’t believe it’s necessarily a case of “weak attorneys-strong officers.”  I do think the emphasis on “well-rounded” makes it a negative to have too much criminal law experience if you want to get promoted, which can mean that COJs and SJAs may not have the MJ experience we’d like them to have.
     
    That doesn’t make them “weak attorneys.”  I put the fault on the MJ first, the TC second (which means the entire government supervisory chain), and the DC third.  Each made pretty basic errors. 

  5. Nathan A. White says:

    Perhaps it’s Monday morning quarterbacking, but this looks embarrassing all around.  So many questions…
     
    1) Why would TC go forward on the greater offense, but present no evidence? 
     
    Setting aside the burden of proof issue, what exactly was the point of that exercise?
     
    2) In the absence of TC not presenting anything, why would DC elect to put the accused on the stand, vice moving for a finding of not guilty?  
     
    Okay – your guy’s pleaded not guilty to desertion and the gov’t puts on no case.  Um, red flag, anyone?  Why aren’t you thinking 917 right away??  ACCA is right – if ever there was a case for a 917 motion, this was it.  Moreover, never hurts to just throw it out there and see what happens – see US v. Fosler.
     
    3) Why would the MJ convict on the greater offense? 
     
    Assuming TC/DC are young CPTs, maybe they’re young and inexperienced.  But your honor, c’mon.  No evidence from the gov’t…and you still convict?  Why?  Even if you don’t feel like doing a 917 sua sponte motion, you just invited an appellate issue…and 12 minutes doesn’t help the fact pattern too much, either.  At least go get lunch or something first.
     
    4) Why would DAD not raise the issue on appeal?
     
    As a former app defense guy, yeah, we know the sentence is going to get reassessed to…oila!…the same sentence, but at least put up a fight for the guy.  I mean, if I can remove the label of deserter from my client’s criminal record, that’s something to the client’s benefit, right?
     
    5) What happened here? 
     
    Was this just a sinister attempt to see if CCA judges actually read the ROTs of cases submitted on the merits?? 

  6. Joseph Wilkinson says:

    McLaughlin — it would be, except that the prosecution should have introduced evidence of his long absences.  As a matter of law, his guilty plea could not be used to establish the additional element for desertion…those facts could be used, but they had to be proved with additional evidence.  That was the prosecution’s mistake. 
     
    If they’d negotiated a deal on a mixed plea, they could’ve agreed that the stipulation was usable for findings, or had a separate stip for findings (I did that once, to the mutual benefit of all concerned).  But maybe their positions were too far apart to try that.   
     
    Nathan — Well, to your #2, the defense might be worried that the judge will take the opportunity to invite the prosecution to reopen their case and present some evidence.   If they took the hint…they might look clumsy as hell, but I bet they could get evidence of his long absence in jig time, since the case was being tried stateside at the post he was missing from.   I don’t know Judge Lippert at all, but I’ve known some judges who would give the TC a friendly nudge in that direction.

  7. TBeckett says:

    @stewie
    A “well-rounded” attorney has been the standard since the Civil War; however, the law has become vastly more complicated in the interim.  Because “well-rounded” is the coin of the realm, “pretty basic errors” occur.  I have seen them occur with frightening regularity.  Unfortunately, that means we are ignoring our professional obligations by tolerating them. 
    This case is emblematic of systemic failures. 
     
     

  8. ScottComstock says:

    Am I off base in guessing that nobody’s head will roll for this debacle?

  9. afjagcapt says:

    Nathan — Well, to your #2, the defense might be worried that the judge will take the opportunity to invite the prosecution to reopen their case and present some evidence.   If they took the hint…they might look clumsy as hell, but I bet they could get evidence of his long absence in jig time, since the case was being tried stateside at the post he was missing from.   I don’t know Judge Lippert at all, but I’ve known some judges who would give the TC a friendly nudge in that direction.

    @JW, point taken on the 917 having the MJ permit reopening, but what really makes me scratch my head (well one of the things) is the DC putting the accused on the stand after the government presented nothing.
    I’m not sure that I like that the accused gets to choose to take the stand and, no matter how incredible his statements, the MJ can’t call BS and find him guilty of the greater charge (esp when the D(IA)C walks him through each element), but that is really on the G for not putting on something (anything!) in findings in which case this probably is fine and thus this is insufficiently likely to be repeated that I guess it isn’t something to be concerned about.
    Truth really is stranger then fiction sometimes.

  10. stewie says:

    Tbeckett, well from my POV you can say “we won’t tolerate folks with limited experience making basic errors” when the system you set up discourages folks from spending enough time in criminal law to build up the experience to avoid making “basic errors.”
     
    From my time in, we’ve seemed to veer back and forth and back again between “no specializing” to “it’s ok if it’s crim law because we need it” to “no specializing.”

  11. John O'Connor says:

    The participant I can’t figure out in all this is appellate defense counsel.  Don’t they begin with the rebuttable presumption that if the accused is convicted of something to which he pleaded not guilty, they will challenge the conviction on appeal?  And then when you see that the Government presented no evidence at trial, the path on appeal seems clear.
    I agree with those who suggest that if the DC moved under 917 the MJ probably would have let the Government reopen its case.  I mean, all the Government had to do was put in evidence on the length of absence and I think that would be sufficient to support an inference of intent to remain away permanently.

  12. Hot_Take_JAG says:

    It seems like only in the MJ system do you get a bizarre case like this.  Who but the most cynical supervisor (CoJ) lets a TC prove up a desertion charge with NO evidence and NO case?  On procedural grounds alone that should be a non-starter.  That’s a borderline violation of prosecutorial ethics and PR rules because the gov’t prosecuted a charge for which they planned to prevent no evidence.  But since we all know how CMs go, that CoJ and TC thought this was a viable (maybe even smarmy/cheeky) idea.  If it wasn’t a cynical decision, then it was sheer laziness or ineptitude.  But this being the Army, it could be all of the above.  Arrogance and indignation piled on top of ignorance and laziness.  Broadly skilled JA indeed.

  13. Hotter_take says:

    Glad to see that decision to stand up the 7th ID solely to cut down on I Corps’ UCMJ case load is working out so well.

  14. Joseph Wilkinson says:

    afjagapt — One possibility is that they were hoping for an acquittal right then instead of just “a really great appellate issue”…since appeals courts themselves can do head-scratchy things to keep a conviction alive.  
     
    There are some older cases (from the 50’s if I remember) where a person testified he left the Army to “work the family farm” or take care of some kind of personal business, but intended to come back afterwards…and ultimately got relief for it since their accounts were not contradicted.   That is one defense advantage in AWOL cases…the prosecution is probably not going to chase down the accused’s associates to find out what he was doing and saying off on the other side of the country (or the ocean), so his own account is likely to be uncontroverted. 
     
    I don’t know if that was the defense’s reasoning or not, but it could make sense.

  15. Nathan A. White says:

    Re: the 917, something tells me the MJ could’ve let the TC re-open the case, but I don’t think they were prepared to put on evidence.   My sneaking suspicion is TC thought a res ipsa theory of 3 years = equals desertion would speak for itself without having to actually present in their case in chief the three year absence which already came out through the Care inquiry.  In other words, the element of 3 years having been pleaded to, no more work needed.  Still, what’s the point?  Did they think they were going to get a greater sentence?  I would hazard to say TC’s sentencing evidence was unaffected by whether the conviction was for desertion or AWOL. 
     
    @John O’Connor – I wouldn’t say there’s a rebuttable presumption that you challenge litigated convictions on appeal .  When you get the ROT and see there are litigated specs, you look carefully at what evidence the gov’t presented to prove them up, plus all the other things the gov’t can do to mess up in a litigated case.  If I saw that the gov’t presented no evidence, I would’ve been salivating.  You don’t win too many on appeal on the defense side, so never pass up a chance to win anything – especially if it gets your name on the back of the Honey Badger mat outside Dwight Sullivan’s office.  But seriously, I do think removing the deserter label is meaningful relief for the client.  As far as military specific offenses go, civilians know what being a deserter means and I could foresee that carrying a stigma for the client in various economic or social settings.

  16. ContractLawyer says:

    I do not see how this case could have provided any other result, but what gets me is that it went through the TC, Chief of MJ, Dep SJA/SJA, CA, GAD, and DAD before an appellate judge pretty much caught this sua sponte
    I have also wondered about cases where CCA grants relieve and knocks off six months of time off the sentence of a guy who has already served his entire sentence.  There ought to be a rule that they get something meaningful to make up for this time, but they all seem OK with it and even here, I am sure the guy did all the time, so CCA prevents the “injustice” by reassessing the sentence as the same. 
    Despite that, it is extremely valuable to not be a deserter.  A lot of good soldiers from back in the day have some AWOL time and lost time.  I have seen it when reviewing ERBs of senior NCOs with low GT scores (their rank goes E1, E2, E3, E2, E3, E4, E3, E4, and on up and they have a couple periods of lost time).  I suppose that is just life experience for an old soldier.  You haven’t lived unless you have absented  yourself a couple of times without leave.  It shows you are brave and not scared to stand up to “the man.”  In any case, they always come back.  Being a deserter means that they left to go hang out in China and Russia with Jane Fonda and help make IEDs for the Viet Kong. 
     

  17. D Wright says:

    Cry.

  18. Bill Cassara says:

    Many years ago I had the exact same thing happen in a Wrongful Appropriation case. Client plead. Government wanted to prove up the larceny. No opening, no evidence.  Government rests. Before I could stand up the military judge said “accused and counsel please rise.”  Client was acquitted of the larceny.  Still didn’t beat the deal as I recall, but a good lesson in how to properly manage such a situation.