I anticipate that CAAF will soon issue its decision in the Air Force case of United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page). That case presents a granted issue and a certified issue, both of which challenge the Air Force CCA’s application of CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), where CAAF held that “where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside.” 71 M.J. at 129. In Piolunek, the Air Force court held that such an error may be found harmless and the conviction affirmed.

Last week the Army CCA adopted its sister court’s reasoning that in a contested child pornography prosecution, the introduction of images that are not child pornography need not necessarily result in reversal of any resulting conviction.

The Army case is United States v. Doshier, No. 20120691 (A. Ct. Crim. App. Feb. 24, 2015) (link to slip op.).

The prosecution involved “approximately six hundred images of alleged child pornography.” Slip op. at 5. The panel returned a general verdict of guilty to a single specification of possession of child pornography after the judge instructed the panel that:

[Y]ou must review each image and determine whether it is child pornography. You may determine that all are child pornography or that none are child pornography. However, if you determine that some are child pornography, then you must specify which images either are, or are not, child pornography.

Slip op. at 4-5. Yet the CCA observes that some of the images are unquestionably not child pornography (or even obscene), as they include “depictions of a door, a sign, the back of someone’s head, fully-clothed children, children in bikinis, and images too small to determine their content.” Slip op. at 5. However, the CCA “reviewed every image and [is] convinced beyond any reasonable doubt that at least three hundred of these files constitute child pornography.” Slip op. at 5. One wonders why the panel could not do the same.

Nevertheless, the CCA finds that the introduction of non-contraband images was harmless. Adopting the AFCCA’s reasoning in Piolunek, the Army CCA concludes that

We are convinced beyond a reasonable doubt that a rational panel would have found appellant guilty of possessing at least three hundred images and photographs of child pornography absent the error. The quantity and quality of the evidence in question is too overwhelming to conclude otherwise.

Slip op. at 6. A footnote summarily rejects an assertion of error apparent failure of the members to follow the judge’s instructions, concluding that “the ultimate issue is not whether the members followed instructions, but rather the sufficiency of the evidence and the validity of the verdict as a matter of law.” Slip op. at 5 n.3.

9 Responses to “The Army CCA adopts the AFCCA’s reasoning in Piolunek”

  1. abc123 says:

    Depressing Quote:
    “…panels from time to time make guilty finidngs where the evidence is insufficient as a matter of law.”

  2. Zeke says:

    Depressing Quote:“…panels from time to time make guilty finidngs where the evidence is insufficient as a matter of law.”

    Small nonunanimous panels are prone to wrongful convictions.  It’s empirically proven.  See Ballew, 435 U.S. 223 (1978) and Burch, 441 US 130 (1979).  Those cases don’t even account for the fact that our members panels are not representative of the community and are personally selected by the same officer who levies the charges to be tried.  Our system gains speed and loses the chance of a hung jury at the expense of increased chance of wrongful convictions.  To try and achieve balance, Congress  empowered convening authorities to set aside findings, and gave CCAs the unprecedented power to conduct factual sufficiency reviews.  As of late, the clemency power of convening authorities has been largely destroyed and there are those who have started to argue in earnest that CCA factual sufficiency review power should also be abolished.  These measures are combined with the loss of a statute of limitations for bringing certain sexual offense allegations (2014 NDAA Sec. 1703), the loss of the right to a discovery hearing (2014 NSAA Sec. 1702a), the loss of the right of defense counsel to independently interview the complainant prior to trial (2014 NDAA Sec. 1704 and 2015 NDAA Sec 531(b)), the imposition of mandatory minimum sentencing for certain sexual offenses (2014 NDAA Sec. 1705), the creation of impediments to the accused obtaining a deposition (2015 NDAA 532(a)), the prohibition on commanders considering the character of the accused when deciding how to dispose of allegations against him or her (2014 NDAA Sec. 1708), and the prohibition on the character of the accused being considered during trial (2015 NDAA 536).  The military, in it’s attempt to stamp out sexual assault, has placed the burden of “reform” solely at the feet of accused persons, which it had already subjected to trials before hand-picked panels too small and too ununanimous to reliably avoid wrongful convictions.  These are becoming dangerous times to be accused of something in the military – especially, but not only, if that something is a sex offense.

  3. Zachary D Spilman says:

    Not just panels. The appellant in United States v. Gutierrez, __ M.J. __, No. 13-0522/AF (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of aggravated assault, based on evidence that CAAF found was legally insufficient to sustain the conviction.

    It may be depressing, but it’s not shocking. Sometimes things go wrong at trial. If every trial was perfect, there’d be no need for appeals.

  4. CPT AGJ says:

    A commentator discussing the Jodi Arias mistrial yesterday paraphrased Winston Churchill, saying that our justice system is the worst system in the world, except for all the other systems. 

  5. Brian Mason says:

    Now Zach – Let’s be fair to the military judge in Gutierrez.  CAAF did find the convictions for Agg Assault legally insufficient, but only after expressly overturning two of their own cases and over 20 years of precedent in this area.  At trial, the military judge followed the well-settled precedent.  I think we would all agree that military judges are not expected (or allowed) to ignore the law as it is and instead apply the law as they expect it might be 4 years later through a case law change, right? 

  6. The Silver Fox says:

    Concur, Brian Mason.

  7. Zachary D Spilman says:

    You’re absolutely right Brian.

    I’ll note that I don’t think there’s anything inherently wrong with a judge getting reversed (just as there’s nothing wrong with making an objection that gets overruled).

    Excluding issues of factual sufficiency, one would expect that a panel in Gutierrez would have reached the same result.

  8. stewie says:

    American justice suffers from the same kind of malady all human systems do, we are only willing to go so far/spend so much to get a right enough system for us.  There are all sorts of things we could do to make it fairer to accused, or more clear, or more likely to convict the guilty and exonerate the innocent, but these things are expensive, or time-consuming, and thus we go with “good enough.”

  9. Zeke says:

    American justice suffers from the same kind of malady all human systems do, we are only willing to go so far/spend so much to get a right enough system for us. 

    I agree entirely.  I think a “good enough” system, at a minimum, should require panels of sufficient size (if not unanimity) to engage in reliable fact-finding.  Three or five ain’t it.  13 members on every general court-martial without exception was “good enough” for the Continental Army during the revolution.  13 members on every general court-martial unless it would cause “manifest injury to the service” was good enough for the Union Army during the civil war.  It seems to me to be absurd to argue that we can’t require 13 members on every general court-martial in our modern military, which is not presently fighting a war on our own soil, and has the benefit of modern modes of transportation and infrastructure.  We can’t blame a lack of resources or time for that failure … we can only blame a lack of commitment to the concept of a government of limited powers – one which is not free to punish its citizens unless it is able to completely convince a panel of citizens that one of their own is guilty beyond a reasonable doubt. The American criminal justice system has never really been about convicting the guilty and exonerating the innocent – it has always truly been about ensuring that the government (prosecutors, courts, whatever) doesn’t get to decide whether a citizen is guilty, the people do.  The people are deprived of their rightful power when their juries (or court-martial panels) are too small to represent their interests, are stacked with the government’s chosen few, or are free to disregard dissenting voices by being free to return nonunanimous verdicts.  Our court-martial system is dangerous to the accused, but it is even more dangerous to the concept of a limited government.  Prosecutors should fear juries – if they don’t, we’re doing something wrong.