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.