In United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed a child pornography conviction, and dismissed the charge with prejudice, after finding the uncured appearance of unlawful command influence in the trial counsel’s access and use of a military judge’s personnel record to seek the judge’s recusal, and in a supervising counsel’s ex parte communication with the judge’s supervisor to complain about the judge’s rulings. The case was our #4 Military Justice Story of 2013.

In a recent decision in United States v. Hutchinson, No. 38503 (A.F. Ct. Crim. App. Jun. 29, 2015) (link to slip op.), the AFCCA addresses a somewhat similar set of facts. Raising concerns about speedy trial issues, the trial counsel (prosecutor) repeatedly asked the military judge to hold a session of court to address any speedy trial concerns. The judge repeatedly denied the Government’s request to go on the record. Then:

the chief regional military judge (CRMJ) for the central region (who was also the military judge’s supervisor and rater) called the military judge. According to the testimony of the military judge, his supervisor informed him that he had received a call from the staff judge advocate (SJA) to the special court-martial convening authority for this case. The CRMJ indicated the SJA said the military judge was being recalcitrant, and the CRMJ asked the military judge for information on the situation. Having just received two electronic requests for an Article 39(a), UCMJ, session from trial counsel, the military judge understood exactly what his supervisor was referring to, and he then explained the chronology of the case to the CRMJ. He felt the need to do this because his judicial temperament had been questioned to his supervisor. . . .

As he considered the matter after the call, however, the military judge became annoyed and unhappy. His impression was that the SJA was unhappy with his decision to not hold an Article 39(a), UCMJ, session and considered it important enough to call the military judge’s supervisor to complain about his performance and professionalism in a pending matter in an ongoing court-martial and to make the government’s strong desires known, all in an apparent attempt to influence the proceedings. This action by the SJA caused the military judge to “think twice” about his actions in denying the government’s prior requests.

A few hours later, the military judge received a motion from the government, asking again that he convene an Article 39(a), UCMJ, session. This time, the military judge granted the government’s request. . . .

Slip op. at 5-6. The military judge did not recuse himself but a different judge was detailed to the case because the original judge was transferring. The appellant ultimately pleaded guilty to conspiracy, wrongful sale of military property, larceny, and disorderly conduct, in violation of Articles 81, 108, 121, and 134, and was sentenced to confinement for 38 months and reduction to E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 19 months. Then, on appeal, the appellant asserted the existence of an appearance of unlawful command influence in the ex parte communications with the judge.

Writing for a three judge panel of the AFCCA, Senior Judge Hecker makes three conclusions: (1) that the issue of UCI was not (and could not be) waived by the appellant’s guilty pleas and pretrial agreement; (2) that the appellant has made a colorable showing of the appearance of unlawful command influence; (3) that the appearance is harmless beyond a reasonable doubt.

In finding the issue not waived, Senior Judge Hecker writes:

The government now argues that the appellant has waived appellate review of this issue. When an appellant has intentionally relinquished or abandoned a known right at trial, “it is extinguished and may not be raised on appeal.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citing United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008)). As this court pointed out in a recent decision, our superior court to date has not applied waiver to issues of unlawful command influence arising during the adjudicative process, as it has for those arising during the accusatorial process. See United States v. Dundon, ACM 38436, unpub. op at 5 n.5, 5–6 (A.F. Ct. Crim. App. 27 February 2015), review denied, ___ M.J. ___ No. 15-0511/AF (Daily Journal 2 June 2015). As we did in that case, we decline to find waiver here. Given our superior court’s precedent, we find the appellant could not waive the issue of unlawful command influence relative to the military judge originally assigned to his case. This result is especially appropriate where, as here, the military judge advised the appellant that it was possible his unlawful command influence motion could, in fact, be reviewed on appeal.

Slip op. at 9 (emphasis added). Notably, in the CCA’s decision in Dundon (discussed here), which was also authored by Senior Judge Hecker, the court suggested that the JAG certify that case to CAAF. Obviously, the JAG didn’t.

On the appearance of unlawful command influence, Senior Judge Hecker explains that:

We find the appellant met his initial burden of presenting some evidence of apparent unlawful command influence. . . .

As the replacement military judge found at trial, the SJA’s phone calls to the chief trial judge and the CRMJ were made in an effort to have them assist in changing a ruling made by the sitting military judge, and these calls played a part in the military judge’s decision to hold the Article 39(a), UCMJ, session. We recognize this ruling related to whether to schedule a court session, as opposed to a substantive ruling on a legal issue. That distinction, however, does not make the ruling subject to modification through the process employed here. When the government disagrees with the rulings of a trial judge, it may seek reconsideration, file motions with the trial judge, or seek this court’s involvement through government appeals under Article 62, UCMJ, 10 U.S.C. § 862, or through extraordinary writs.

As our superior court has expressly stated, the normative process in challenging a ruling does not include having “the Government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling.” Salyer, 72 M.J. at 426. Such a process can essentially create, or appear to create, a backchannel ex parte review of a military judge’s ruling through the use of supervisory judges as an informal quasi-appellate court system. To permit this “would foster the ‘intolerable strain of public perception’ on the military justice system which the proscription against unlawful command influence and this Court guard against.” Id. at 427. To that end, our superior court has condemned communications to a military judge’s judicial superiors regarding his performance, noting that “[p]art of the trade-off in a system in which judges lack tenure and professionally survive only by grace . . . is special vigilance to assure judicial independence.” United States v. Campos, 42 M.J. 253, 260 (C.A.A.F. 1995).

Slip op. at 13-14.

However, the appearance is harmless under the facts of this case:

Once he convened the Article 39(a), UCMJ, session, the military judge did not change any of his prior rulings and he continued to support defense counsel’s positions. Although the government facially achieved its overall goal of having an Article 39(a), UCMJ, session, the military judge’s continued refusal to engage in substantive discussions with the appellant at that session or engage in the other discussions requested by the government frustrated its plan to use this session to add to the record, leaving the appellant in the same position as before the session was convened. The government therefore received no advantage from its successful efforts to have an Article 39(a), UCMJ, session. Cf. Salyer, 72 M.J. at 428 (finding that government failed to meet its burden when an objective member of the public would have the impression that the government obtained an advantage).

Additionally, the appellant elected to plead guilty before another military judge, and he has raised no issue on appeal about the fairness or propriety of that proceeding or its results.

Slip op. at 14.

70 Responses to “Don’t call a military judge’s boss to complain about a ruling”

  1. Peanut Gallery says:

    So the mortal enemy of military justice is HBRD.  Who knew?

  2. Phil Cave says:

    Some history.  I’m sure some of us remember the infamous “Mabe letter.”  The Navy had a “problem” with judges who gave light sentences.  Thus, we had Mabe and Allen about the same time.
    First, United States v. Mabe, 28 M.J. 326 (C.M.A. 1989). 

    On appeal Mabe has complained about a letter written by the Chief Trial Judge of the Navy to the Chief Judge of the Transatlantic Judicial Circuit. He asserts that this letter, which the military judge in this case purportedly knew about prior to trial, constituted improper influence. Art. 37, UCMJ, 10 USC § 837. He alleges that the purpose of the letter was to cause an increase in sentences for unauthorized absence in the circuit where the trial was held.

    Various commanders in the Med had complained to the chief judge.  Thus continued the tortured history of the case, which the government eventually won through a harmlessness analysis.
     
    Second, United States v. Allen, 31 M.J. 572 (N.M.C.M.R. 1990).
     

    On appeal, the court found that: 1) apparent unlawful command influence was not present; 2) the military judge properly refused to recuse himself; 3) there was no prejudice to defendant from the staff judge advocate’s initiation of an ex parte communication with the judge; 4) the stipulation of a certain witness’s responses to interrogatories was adequate to allow the defense to bear its burden of producing sufficient evidence to raise the issue of unlawful command influence; 5) assuming that the ex-parte communication was sufficient to raise the issue of unlawful command influence, based on the military judge’s disclosure of the conversation, his openness during voir dire, his statements that he completely disregarded the communication as improper, and the factual circumstances surrounding the request as it related to the law, the military judge was not influenced by that communication when he denied defendant’s request for a continuance[.]

     
    Third, United States v. Lewis, (N-M Ct. Crim. App. 2005).
     

    The court held that the actions of the trial counsel and the staff judge advocate were unprofessional and improperly succeeded in getting the military judge to recuse herself. However, the accused was not prejudiced by the recusal because both judges diligently heard the testimony and argument and rendered their rulings after thoughtful deliberation.
     
     

    The government wins again.
     
     
    Fourth, etc., etc., etc.
     
    There are a number of questions that should be asked about–to paraphrase LTG Harding–the process here.  I’ll leave them in moderation.  But, I ask, is it a wonder then that commands and military prosecutors feel comfortable having ex-parte complaints laid with a military judge’s supervisor while the case is ongoing?  The greater wonder is how often this happens and we don’t learn of it.
     

  3. stewie says:

    Peanut Gallery…he pled guilty and the MJ didn’t do anything for the government other than grant a hearing. I think the complaining was clearly wrong, but not sure there was any injustice here. You’d have overturned the GP and dismissed the charges? UCI is the mortal enemy of justice but it’s never been an if you find it, it’s a per se dismissal either.

  4. Phil Cave says:

    @Stewie.  I agree with you in one sense.  But.
    Miranda, like it or not, arose because the court wanted to send a message.  The history of this type of issue suggests that the appellate courts need to do a Miranda, because otherwise people are not learning.  I don’t know the timing of this case, but if it comes after Sayler, then explain how an SJA did not know about Sayler and consider the implications and do the research and think before calling.
     
    I’m having serious problems accepting no harm no foul here because of the continued principle.  I’m also wondering about the public confidence implications of service members knowing that if the command doesn’t like what’s happening in their son’s trial the lawyer will just call in the chiefer judge.  So I’m not sure we should be so dismissive of this.
     
    And again, I wonder how often this happens and we don’t know.  This creates doubt as to the fairness of the military justice process.
     
    What would happen if the Attorney-General of the U.S. called the circuit chief judge on a district court judge because of the judge’s rulings or actions?  Those judges have lifetime appointments and security of a term of office.

  5. Bill Cassara says:

    Until the courts take a firm stand on such actions, people will continue to consider military justice to be the “JV” squad. The fact that an SJA would do such a thing in this day and age is mind boggling. 

  6. stewie says:

    But even Miranda isn’t a definite bright line. There are nuances and exceptions to it as well. At the end of the day the analysis in Miranda is based on whether the appropriate rights were given to/understood by the accused, and whether they waived those rights. It’s not a per se situation.

    I get it though. I think in this case and this case only, it’s the right result. I understand the argument that if one thinks it’s happening repeatedly without correction then stricter approaches need to be taken. I suppose if this were a contest, I’d feel more like there was a potential for prejudice than a guilty plea.

  7. Bill Cassara says:

    Who thinks the SJA got a negative mark on his OPR for this? Yeah, me neither.

  8. Peanut Gallery says:

    Facts like these, combined with appellate decisions like these, do little to dispel some common [mis?]perceptions about military justice.

  9. NSP says:

     
     
    or or referred for the violation of Rule 3.5, AR 27-1 Rules of Professional Conduct for Lawyers, and possible violation of 8.2.  I’m betting there’s nothing but crickets. 

  10. Cheap Seats says:

    The misperception being that he even gets to appeal?  Many state and federal courts would not even allow appeal of this type of issue once he pleas guilty.  If you want to preserve it…don’t plea guilty.  Perhaps the generous appellate rights given in GP cases should be looked at.  Or is that not what you meant by us being JV?

  11. Phil Cave says:

    @CS.
     
    The issue was preserved.  UCI is non-waivable.
     
    The states don’t have this as a basis for appeal because you would not see a state attorney general or prosecutor having ex parte conversations with judges or calling their boss.  I suspect if it were found to have happened in civilian proceedings the caller would quickly have been disbarred, or at least disciplined.

  12. Brutus "The Barber" Beefcake says:

    Correct me if I am wrong, but wasn’t the base SJA in the case a former military judge himself?

  13. Dew_Process says:

    Where the case breaks down imho is the finding of harmlessness.  Where there is a mid-trial violation of Art. 37 (which under Article 98, constitutes an offense), how can a crime perpetrated (or at least attempted to be perpetrated) on a MJ, not be “harmful?”  Now, I’m not necessarily saying that the charges should be dismissed, but there needs to be some consequences with an “ouch” factor as a deterrent.
     
    This has been a problem for many, many years within the AF – indeed, it’s the first response of many SJA’s when they get (what they perceive to be) a “bad” ruling from a MJ.  Gene Fidell and the Admiral Sir Cloudesley Shovell (if he’s lurking about) may remember the hoopla the AF got into in U.S. v. Ledbetter, 2 MJ 37 (CMA 1976), on the interference with an AF MJ’s sentencing policies. There the Court held inter alia:
     

    In the absence of congressional action to alleviate recurrence of events such as were alleged to have occurred here,we deem it appropriate to bar official inquiries outside the adversary process which question or seek justification for a judge’s decision unless such inquiries are made by an independent judicial commission established in strict accordance with the guidelines contained in section 9.1(a) of the ABA Standards, The Function of the Trial Judge, supra. [internal footnote omitted; emphasis added].
     

    Id. at 43.  If anyone ever paid any attention to that admonition, it was quickly forgotten. But, there the court found harmless error for quite a different reason: “Because the inquiries in this instance all post-dated the judge’s sentencing decision, we perceive no error necessitating corrective action insofar as this accused is concerned.” Id.  Here, of course, the “inquiries” occurred mid-trial.  Then, as brother Cave points out, a few years later, the Navy was overtly infected with the UCI virus.
     
    At a minimum, the matter should have been referred to the offender’s State Bar Grievance Committee by the Court – but politics in promotion and assignments makes that an illusion.
     
    @ Cheap Seats:  Sort of agree, but a conditional plea would be a more appropriate response imho.

  14. DCGoneGalt says:

    Brutus:  you are correct, the SJA is a former judge.

  15. Concerned defender says:

    I agree with Bill Cassara.  I’ll go further. It would be inexcusable that an LT would think this ex-parte complaint to a Senior Judge is okay.  That an SJA and presumably an 05 or 06 would do such a thing or even think it is okay is an outrage.  He ought to be admonished sternly by the Court, and a complaint filed on his bar license, and prevented from promotion.  I would love to see the Court go a step further and some repercussions occur for this behavior.  Much of it goes un-reported or un-noticed, but this mentality and corruption in the SJA and Crim Law ranks is rampant, as I’ve said before here.  Words like prosecutoral misconduct an abuse of discretion really come to mind, and these folks should not get away with it.   It’s like a cancer that thrives and breeds and is rewarded in the Crim Law departments.  If they succeed they win.  If they fail, it’s only uncovered years later when they have long-since moved on and no relief is generally granted to the harmed parties (the accused who may have unknowingly suffered).
    I don’t recall the specifics and I only heard the information through hearsay channels, but I recall around 2013 something similar happened in the investigation of LTC Jay Morris (accused of some form of sex assault).  The SJA there apparently did some very shady things by any legal interpretation.  

  16. John O'Connor says:

    We ought not be in the business of tossing out valid charges because someone on the government side did something wrong that caused no harm to the accused. 

  17. Vulture says:

    Last year the AF Law did an article on “Lawful Command Influence.”  I don’t think it advocated stooping to this level, and not to knock anything AF, but its like an accused take on the law against a SJA w/ something like 15 years.

  18. Zachary D Spilman says:

    The “lawful command influence” article was in Volume 68 of the Air Force Law Review (available here): Lieutenant Colonel Erik C. Coyne, USAF, Influence with Confidence: Enabling Lawful Command Influence by Understanding Unlawful Command Influence—A Guide for Commanders, Judge Advocates, and Subordinates.

    There was also a “lawful command emphasis” article published in the August 2014 volume of the Army Lawyer: Colonel James F. Garrett, USA, Colonel Mark “Max” Maxwell, USA, Lieutenant Colonel Matthew A. Calarco, USA, and Major Franklin D. Rosenblatt, USA, Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Army Law (direct link to article).

  19. Tony Kurlander says:

    The service courts seem so solicitous of the higher-ranking folks involved.  Why isn’t the CRMJ explicitly named?  Why isn’t the SJA who called to complain explicitly named?  What about those other SJAs at higher HQ who said it was OK to call?  The uniformed courts have no problem singling out the captains by name who screw up, whether prosecution or defense, but the O-6s and above are usually shielded from embarrassment unless the case is so egregious that it is absolutely unavoidable.  I would have liked to see names named, here. 
    In the Air Force, military judges don’t have controlled tours–at least they did not when I was an MJ.  That is a policy that must be changed.  I know the Army MJs have controlled tours–which is how it should be.  If MJs rule against the defense on motions, and impose sentences upon which the government looks with approval, everything is hunky-dory.  Those MJs often serve lengthy tours, or have repeat tours, as military judges.  But if the government does not approve of the actions of MJs, those MJs do not serve those lengthy tours and are not treated solicitously with respect to future employment in the Judiciary.  You can just forgetaboutit. 
    Command influence continues to plague military justice.  Often the culprits are not dumb, big-mouthed commanders or senior NCOs, but senior JAGs who should know better.  And the system, incredibly, continues to shield and enable them. 
    Just my two cents’ worth.  Best, Tony
     

  20. Vulture says:

    Mr. Spilman, Thanks, that’s the one.

  21. stewie says:

    ACCA publishes the names of every SJA involved in the case in the opinion header.  I’m surprised the AF doesn’t do the same.
     
    If folks think looking into prosectuorial misconduct or something similar (report to bar…and by the way, anyone can report someone to their bar…folks on here could do it right now on the SJA/people involved) that’s something to look at.  But I agree, if there are otherwise valid charges, plus a guilty plea, plus no evidence of harm, I can’t see tossing the charges.

  22. mi-5 says:

    The SJAs have control of the Commanders and the Courts!!  They are too dangerous to be left to their own devices.  At least in Salyer, the court sought to save their own hides by making the right decision to smack down the trial shop’s personnel records deep diving, but looks like the system has gone back to SNAFU.
    We must end this once and for all.  The oppression of undue influence shall not be allowed to return. 

  23. Cloudesley Shovell says:

    Dew Process,
    I still lurk about.  Here, I agree with what John O’Connor says.
    Bigger picture, theses matters need to be dealt with as a disciplinary matter by the appropriate JAG, whether within the confines of the ethics rules or as an breach of good order and discipline.  Lots of administative and punitive measures available.  If any service JAG ever uses such measures in response to govt misconduct such as this, I’ll eat my hat.  
    Kind regards,
    CS

  24. DCGoneGalt says:

    Dew Process:  Your conditional plea idea is good.  Except in the AF for a conditional plea to be accepted you need the consent of an authorized government official.  And the applicable instruction states that the authorized government official is . . . the SJA.  I wonder what the SJAs position would have been?

  25. Dew_Process says:

    @DCGG – I hear you and acknowledge that – especially in the AF – that can be problematic. However, there’s nothing to prevent one from going straight to the CA him/herself to seek approval, which the couple of times I’ve done so, were approved by the CA even when the SJA wouldn’t.  When you explain the cost-benefit analysis, especially if witnesses have to be flown in or not having members tied up for X days, they get the picture.

  26. huskerjag says:

    Quoth the esteemed Cloudesley Shovell:
    “Bigger picture, theses matters need to be dealt with as a disciplinary matter by the appropriate JAG, whether within the confines of the ethics rules or as an breach of good order and discipline.  Lots of administative and punitive measures available.  If any service JAG ever uses such measures in response to govt misconduct such as this, I’ll eat my hat.”
    Sadly, this last sentence is precisely why strong judicial sanctions are necessary to stop this intolerable practice. When existing institutional administrative and disciplinary measures fail, or worse acquit those who actively seek to subvert the administration of justice, then strong judicial sanctions may be the only effective means of ending this abhorrent practice and holding the government accountable. Perhaps true accountability won’t occur until judges compel the system to clean up its act, even if it means causing additional pressure to reform by jilted victims.
    If a defense counsel engaged in this kind of behavior, they would be prosecuted for obstruction of justice. When those who are responsible for deciding who must face justice (or supervising those who do) refuse to hold their own accountable, then others with the means and the ability must do so.
    Relying on an institutional disciplinary system that is widely understood to be unable or unwilling to hold these individuals accountable, or worse, allow them to continue their careers unchecked is not a solution but an intolerable enabler of abhorrent behavior.
    Waiting until the accused suffers the ignominy of a federal conviction and months or years of confinement to demonstrate that the “justice” system was tampered with by the government upon appellate review is a hollow solution that effectively rewards the wrongdoer with a trial victory and makes a mockery of the military justice system.
     
     

  27. Concerned defender says:

    Huskerjag brought a tear to my eye.  Well spoken and I concur.  

  28. stewie says:

    Just so I’m clear, you are advocating that once UCI has been established by the defense, that’s it, case dismissed? No prejudice analysis? Or does it depend on the type of UCI?

  29. Concerned defender says:

    Just so I’m clear, you are advocating that once UCI has been established by the defense, that’s it, case dismissed? No prejudice analysis? Or does it depend on the type of UCI?

    Surely some analysis should be required, but I’ve seen cases that were ONLY at trial due to UCI.  I cannot fathom how an honest appraisal of the UCI from the POTUS and Congress and senior leaders and SHARP training does not amount to UCI.  Seems that those borderline cases should largely just be dismissed in my view, unless there is collateral misconduct.  By borderline, I say one needs to look hard at the motives (divorce, custody, assets, promotion, disgruntled subordinate, prior frivolous complaints, vendetta, repairing reputation, etc.) of the complaining witness, her credibility, etc.
    This really benefits everyone – eliminating the wasted resources on these garbage cases, increasing the conviction rates of real assaults, improving resource allocation for real victims, etc. 
     
     

  30. stewie says:

    How does Congress commit UCI? The President arguably committed it in a general sense. Should we dismiss all sex assault trials until he rescinds it? Should those dismissals be with or without prejudice?
     
    We should always look hard at the motives of the Alleged Victim…what does that have to do with UCI?

  31. Ed says:

    Stewie Ask Generals Franklin and Helms. That is how Congress  commits UCI.

  32. stewie says:

    Congress doing stuff we don’t like is not UCI. By definition, Congress cannot commit UCI.

  33. k fischer says:

    Stewie, POTUS is THE senior most general court-martial convening authority under the UCMJ, Article 22. His statements were the most direct and well publicized acts of UCI.  So, yes.  On those questionable cases I think the MJ should have a reasonable doubt regarding whether UCI reared its ugly head and had an impact on the proceedings.  And a dismissal should be in order to ensure the appearance of justice.  Does that leave a n alleged Vic without justice?  No.  A SAUSA could proesecute if on a military base.  If off post, then we should leave prosecutions to them.  Otherwise Article 37.is rendered moot and superfluous….hyperbole ad hominem notion at the end of the day bottom line.

  34. stewie says:

    So then not every sex assault case, just the “questionable” ones? How do we determine that? Do we have the full trial, then the MJ makes the call?

  35. John O'Connor says:

    Sayeth Sir Cloudesley:  “Here, I agree with what John O’Connor says.”
     
    Truer words were never spoken.

  36. k fischer says:

    No, the military judge can look at the facts of the case and determine whether the case is highly questionable.  Wouldn’t you agree that in a highly questionable case where UCI has been proven to exist, or the appearance of UCI has been proven to exist, that one of the explanations how the case gets to trial is UCI?  That is why a judge should in his finding of facts assess the strength of the Government’s case.  In a particularly strong case supported by evidence, the judge could be convinced beyond a reasonable doubt that UCI had no bearing on the decision to refer.  However, when you look at a particularly weak case, such as a case where an NCO invites a junior enlisted Airman to her apartment to watch movies, drink wine, snuggle under a blanket, then go back to the bedroom where she is heard moaning in pleasure, then waits until the next morning to tell the Airman’s friend, who was in the next room and could have helped fend off the Airman if the contact was without consent, “Airman Wright raped me,” I think the judge could look at those facts and think, “Hmmmmm.  That case sounds a little weak.  It was previously investigated, and recommended for dismissal, which resulted in UCI.  Then, this weak case was re-referred after another investigation that recommended referral.  I’m not convinced beyond a reasonable doubt that the decision to refer this weak case was free of the taint of UCI.”  Courts in the past have discussed the facts of cases involving questionable allegations of sexual assault.  For instance, in US v. Foster, the NMCCA stated:

    Significantly disturbing to the court, the allegations of rape were made in the midst of a hotly contested divorce and custody battle, after failed attempts at settlement, under the terms of which Mrs. Foster was prepared to surrender partial custody of her children to the man she later accused as an abusive rapist. Considered in the light most favorable to the Government, a reasonable member could choose to believe the victim, and to disbelieve evidence inconsistent with guilt. However, under the facts presented, we are unable to conclude that the appellant is guilty of rape beyond a reasonable doubt. To the contrary, we hold that his conviction of rape was factually insufficient, and was obtained as the result of other errors, discussed below. The rape conviction cannot stand.
    U.S. v. Foster, NMCCA 200101955, 2009 WL 382002, at *3 (Navy-Marine Crim. App. Feb. 17, 2009)

     
    So, allegations made during a hotly contested divorce create a reasonable doubt in one Service’s appellate courts to overturn a conviction on factual sufficiency grounds.  Had Foster been decided after POTUS made his statements, then I think a motion to dismiss for UCI might should have been granted.  And, yes, I am foreshadowing the issues in US v. Burris, which I look forward to seeing.  Allegations made during a hotly contested divorce and 32 IO recommends dismissal.
     
    So, I think whether a case is questionable is within the discretion of the Military Judge.  Some of the things he might consider is whether there is a clearly articulable motive to fabricate shown by the defense that is supported by the evidence.  Are there any witnesses to the alleged assault or any forensic evidence that supports the complaining witness’s allegation of assault?  What was the recommendation of the Article 32 investigating officer? 
     
    Stewie, are you saying that a Military Judge is unable to determine whether the Government’s case is weak at a motion’s hearing?  I’ve got a little more confidence in their ability to make that determination.  Then again, it depends on the MJ.

  37. k fischer says:

    JO’C,
     

    We ought not be in the business of tossing out valid charges because someone on the government side did something wrong that caused no harm to the accused. 
     

    I agree, but in this particular case, the harm is that the Accused is facing a court-martial on charges that were investigated a second time because of UCI, and I would have serious doubts as to whether the subsequent referral after the second 32 was free of the taint of UCI.  And, one of the considerations of whether a case should be dismissed because of UCI is whether an actual injustice will replace an apparent one.  Certainly, there is an appearance of UCI in the second 32 and referral.  I wouldn’t lose any sleep if the complaining witness in US v. Wright didn’t get her day in court.  This is a weak case.
     

  38. k fischer says:

    I was referring to US v. Wright in the above two posts.  However, I believe you were addressing the facts in Hutchinson, which strongly appears to have resulted in no harm to the accused as he pleaded guilty in front of a different judge.

  39. stewie says:

    So at the motions hearing? So now in UCI hearings, the government will need to make sure they put on evidence of the strength of the case in order to not have it dismissed?

    What defines a weak case?

    You are being awfully loose in things here. Both the government, and accused by the way, are left to the vagaries of an individual judge saying a case is or is not “weak.”

    There might be a path to factoring in “strength of the government’s case” into a dismissal analysis…but usually where that is done, it doesn’t take much for the government to meet that burden, and the MJ usually doesn’t look at credibility determinations or whatnot in doing so.

  40. k fischer says:

    Your calling me “loose?”  Victim blamer!
     
    So, I think I articulated it.  A weak case is one where there is a clearly articulable motive for the complaining witness to fabricate assault allegations supported by evidence and there is no evidence to corroborate the complaining witness’s allegations.  For instance, the day after she is served with divorce papers, a wife accuses her husband of two years of butt raping her thirty days after they met and 8 days before they went to Las Vegas and got married.  She makes a prayer in her answer to the petition for sole legal and physical custody.  The motive to fabricate is that she wants sole legal and physical custody of the child.  There is no evidence to corroborate the butt rape, and the allegation is particularly absurd in the fact that the complaining witness outranks the accused, is a former victim advocate, lives in a different state, has a job making $150k, and graduated from Princeton. The accused also has a recording where she states: “I’m going to go get a restraining order against you.”  He says, “Why?”  She says, “Because you are violent with me, you leave the doors in the house open putting me and my baby’s life in danger.”  He says, “That sounds like a lot of lies, but you go do what you gotta do.”  She says, “Well you’re lying about me, so…..”
     
     The IO recommends dismissal stating that she lied numerous times at the Article 32, but the SJA recommends referral. 
     
    I think a judge could look at the undisputed facts of the case I described and determine that the Government’s case is weak in order to justify dismissing a case because “an actual injustice would not replace an apparent injustice.”

  41. k fischer says:

    And, Stewie, I don’t think I’m being awfully loose.  You are just being awfully dense in a Government apologetic kind of way.  I don’t mean that in a bad way; just in a difference of opinion kind of way.  I’m kind of disappointed that only a couple military judges have taken a stand to dismiss cases based on UCI since POTUS made those statements.  I really expected that in today’s politically charged environment, MJ’s would have used the opportunity to clear their docket of some bs cases in which the only explanation on how the case got in front of them was UCI.  And, if the vic was upset when the case got kicked, then let the State pick it up, until a new President gets elected.

  42. stewie says:

    Baloney, has nothing to do with “government apologetic.” Having a possible “articulable” motive to fabricate is NOT the same thing as after all the evidence coming in deciding that the alleged victim was or was not credible.  You are trying to set up highly favorable hypos but plenty of cases won’t fall under that hypo, and even the hypo you list is not information the MJ is going to have in front of him or her, and the facts aren’t likely to be “undisputed.”
     
    The MJ will have the charge sheet, and will have seen the motions, and that’s about it. All the stuff you are talking about is much more likely to be delved into in the detail needed by a MJ to determine it’s a “weak case” during the trial itself. If the MJ were sitting in the COJ’s office and following the case, sure, they’d see it as a weak case, but not based on what is received by him/her.
     
     

  43. K fischer says:

    The plenty of cases that don’t fall under those hypos won’t be dismissed, then.  I’m talking about cases that stink like unrefrigerated three day old fish that get referred.

  44. DCGoneGalt says:

    I agree with stewie, absent a showing of UCI, I don’t see how a judge can do anything with a “crappy” case other than what is being done with the “crappy” cases now – let them work their way to an acquittal.  I understand your point, k fischer, but there isn’t a magic wand to take us back to five years ago when the “crappy” cases didn’t get referred because SJAs and commanders were able to evaluate and dispose of them according to a rational evaluation of the law and the facts.  Congress and the POD People roughly rubbed that bottle till the Sexual Assault Inc. Genie came bursting out and there’s no putting it back until the inevitable course correction occurs, if it ever does.  But letting the judge determine, pre-merits, what is “crappy” and what is legit doesn’t seem like a desirable or workable outcome.  Besides, “crappy” cases clogging the docket are a way of making it rain for civilian defense attorneys, no?

  45. Concerned defender says:

    UCI is clear.  I’ve seen it in several of my cases, evening in cases brought forth without any substantiation by the 32 IO. 

  46. John O'Connor says:

    I’m not bowled over by UCI arguments where a convicted servicemember argues that absent UCI the CA would not have referred the charges because they were weak.  That sounds an awful lot like, “And I would have gotten away with it too, if it weren’t for you meddling kids.”

  47. DCGoneGalt says:

    The point is that UCI is a wholly separate issue from whether a case is “crappy”.  If the government has a great case but there was UCI then they have a problem.  However, there is usually no need for UCI due to political panic when you have a good fact pattern because any convening authority can lay out a rationale for going forward.

  48. stewie says:

    kf they stink to you because you are the DC on the case and you know it in intimate detail, or even as an experienced observer you can spot the issues because you’ve seen them so many times…it’s literally all you do because that’s your full time, long time job. They MIGHT stink to an experienced judge if they have seen a lot of motions, but if there weren’t a lot of motions, then it might not necessarily stink to them…and for an inexperienced judge (of which in today’s “broadly skilled” environment there are some out there) it might not stink at all at least until the evidence is presented.
     
    Your proposal would be highly arbitrary and difficult to apply without essentially trying the case in front of the judge to determine whether you could try the case in front of the panel.

  49. RY says:

    With respect to JOC, the “I would’ve gotten away with it” reference, though humorous, presumes guilt. The defense argument, we wouldn’t be here but for UCI, goes to the burden shift. That part is on the Gov’t to prove and while the accused is still presumed innocent. It’s actually more of, “the Gov’t will get away with it too, unless you do something to stop them.”

    IMHO, UCI is largely about the merits and that’s the problem I have with judical rulings thus far. The law requires defense to show some evidence of UCI and then the Gov’t bears the burden to prove BRD there was actually no appearance and no actual UCI or that it is harmless BRD, i.e., we’d still be in trial regardless. In this environment, the appearance of UCI can be made in nearly every case and judges are now commonly finding some evidence. That puts us in the burden shift area for most sex assault cases. That is, the UCI issue question typicaly boils down to whether we’d still be at trial BRD. That’s a merits assessment because only the weak cases are affected. If an accused, for example, confessed to sexual contact after seeing the victim vomit from drinking too much alcohol, does anyone doubt that is going to trial regardless of whether there may have been UCI? The rise in referred cases is not coming from these types of cases, but rather the weaker cases.

    My point is that a true adherence to the laws of UCI should be resulting in more dismissals than are occuring. The standard is supposed to be a very difficult one because the harm is so damaging. Instead of placing the burden on the Gov’t to prove that strength of the case shows BRD that we’d still be at trial, judges are focusing on the process (what TJAG said) and resting on the unrealistic self-assessments of convening authorities that they are immune from influence.

    To be sure, I understand the reluctance of judges to get into the merits of a case in pretrial hearings and I appreciate the desire to focus on process. It is not the process, however, that determines if we go to trial. People make decisions, not a process. The appearance of UCI goes to the improper influence on those decisions, not whether they followed the paperwork checklist in getting to that decision. Unfortunately, as circumstances would dictate, the cases that are weak and should never have gone to trial should end up acquittals. Mistakes in the judicial decision on UCI motions, therefore, will rarely end up on appeal anyway.

  50. k fischer says:

    RY,
     
    Thanks for clearing that up for me.  Very well said!
     
    Fisch

  51. k fischer says:

    Your proposal would be highly arbitrary and difficult to apply without essentially trying the case in front of the judge to determine whether you could try the case in front of the panel.
     

    “Highly arbitrary?”  I think you are engaging in hyperbole.  And yeah, I guess a DC would have to put on a mini case in front of the Military Judge to show that the charges are weak, but these are the hoops the Government must jump through when their most senior General Court Martial Convening Authority commits Unlawful Command Influence.  Perhaps someone should get on the horn with POTUS and tell him to stop violating Article 37.

  52. DCGoneGalt says:

    RY:  Good argument for why UCI and the merits are inseparable.  But I see many commanders who act in good faith to send what I would term weak cases to trial not because of U I but because they believe there is some evidence of every element and that it is good for good order and discipline at this time, and this includes the political environment, for their to be a public hearing on the facts.  I don’t see this as UCI, I see it as a change in the mindset of commanders that public trials benefit GOAD, which is the point of military justice.  I concede there is a complex interweaving of the two issues but I don’t see the changing nature of what constitutes GOAD as per se UCI on a weak case.  I think it is up to SJAs to enhance their ore trial advice of they wish to candidly assess the weakness of a case to a convening authority.  But pretrial advice is usually a template consisting of statements that there is evidence to support the charge and a recommendation to refer.  

  53. k fischer says:

    DCGG,
     

    I agree with stewie, absent a showing of UCI, I don’t see how a judge can do anything with a “crappy” case other than what is being done with the “crappy” cases now
     

    Two problems with this statement.  First the obvious, you agree with Stewie.  j/k Stewie’s right much of the time.  But seriously, your statement “absent a showing of UCI” is fallacious because after POTUS statement, every case has a bonafide showing of actual or apparent UCI in the referral, or in the very least, in the sentencing phase, i.e. they need to be…stripped of their rank….dishonorably discharged….period.  So, EVERY sex assault case has been infiltrated by actual, or at least, apparent UCI.  The question is whether the case would have gone forward even with that UCI.  Like RY said, you have to get somewhat into the merits of the case.  Some of the cases might require a trial before the trial for the judge to wrap his or her mind how weak the case is.  And by weak, I’m talking about where Defense counsel has exculpatory evidence where the SVP and CID has essentially refused to look at or consider.  I agree most of these cases should result in an acquittal, I get the benefit of the “rain,” and I look like a hero when my client walks.  But, why must an accused go through the stress of a trial if the only most reasonable explanation as to why we are at trial is because of UCI? 
     
    The other proposal is for the MJ to reserve ruling on the UCI motion, have the trial, then if the panel convicts, the MJ could rule that UCI infiltrated the process, he’s not convinced BARD that UCI affected the proceedings, then dismiss the charge with prejudice for UCI.  I don’t know of too many judges with the guts to take that action.  I can only think of one MJ that I’ve seen who might have had that kind of courage, but he retired shortly after I got out of the Army.  Great judge, a great officer, and an all around great guy.

  54. DCGoneGalt says:

    A showing of some evidence of UCI shifts the burden.  But I don’t agree that there is per se UCI in every case.  There are some where it is obvious IMO (Wright in AF, the Naval Academy case, Gen Sinclair) but that doesn’t mean it is not rebuttable of the defense shows some evidence.  I believe that is where RYs point about examining the merits is valid because there are  plenty of cases that would have been referred regardless of the current atmosphere.
     
    I have actually seen judges who defer ruling on UCI until after voir dire and, surprisingly to me, most members know of a major case or a general comment by POTUS only.  My main concerns have been the commander Standdown briefs because are direct messaging from a member of the command who has an actual rating relationship to potential members. And that is why I generally don’t trust the FGOs. It is the SHARP/SARC briefs that are remembered and that are so insane they seem to have pushed many members in the opposite direction than intended.

  55. stewie says:

    I think this is indictative of my beef kf…you say “every case has a bonafide showing of UCI” because the President said something quite awhile ago. It’s only bonafide if the folks on the panel actually know that statement exists, and what it was about…and as each day goes by that’s less and less true.

  56. k fischer says:

    DCGG,
     
    Is GOAD enhanced when a single female MP with primary custody of her children falsely accuses a fellow law enforcement officer of sexual assault to get out of her orders taking her to Korea for a year?  How about when a female Major falsely accuses her husband of sexual assault after he files for divorce where she seeks sole physical and legal custody?  How about when a SSG who failed out of Advanced Leaders Course falsely accuses a fellow SSG who passed the same course and said, ‘You have to be retarded to fail out of the ALC” of sexual assaulting her six months prior to him making the statement and she has never even been to his home where she says she was assaulted?  Should there be a court-martial if none of these individuals come off their bs story, just so you can maintain GOAD? 
     
    Because I don’t think that is maintaining GOAD.  A false allegation of sexual assault is probably the most disruptive thing that can happen to GOAD in a unit; the accused is flagged, if he is a position of trust, then he is removed, and , and sending a false allegation to trial is actually encouraging false allegations to be made.  And what the heck do you do when the panel actually convicts this innocent schlep?  That’s not only prejudicial to GOAD, but that is a patent injustice.  

  57. k fischer says:

    Stewie,
     
    I have not seen a panel member with a rank less than CPT or SSG.  Most of these folks are senior and have been in the Army since 2011 and know of the statement. 
     
    But, you are right. All this will be moot in 2016.  Until the next POTUS steps on it and commits UCI because nobody did anything about the last POTUS when he stepped on it.
     

  58. DCGoneGalt says:

    GOAD may be served by sending it to trial to have the facts become public.  Then everyone knows the allegation was not true or unable to be proven while satisfying the POD People that the military did all it could.  I would prefer people be able to exercise common sense judgment but that doesn’t appear to be the chosen COA.

  59. k fischer says:

    I see some value in that proposal, and that’s a great way for civilian attorneys to get hired.  But, they should alter the rules of professional responsibility regarding the special responsibilities of a prosecutor to allow for politically charged allegations to be tried in contravention of a lack of probable cause.  Also, they should probably do something about that pesky Article 37 that keeps getting in the way.  And, then they should probably codify the requirement for all sexual assault cases to go to a GCM to provide justice for both the accused and the victim. 
     
    In fact, if we really wanted to make it fair, then Accused should also be permitted to file a cross complaint against complaining witnesses for perjury, false official statement, abuse, etc.  That way, the panel can decide all issues relevant to the Court-martial. That way if the alleged vic is convicted beyond a reasonable doubt for making a false statement, then we know the accused was acquitted beyond a reasonable doubt.  That would be the most fair.  But……that would discourage alleged vics from coming forward………

  60. stewie says:

    I think you are overemphasizing the reach of the President’s statements to suggest that everyone CPT/SSG or higher knows those statements exist. I strongly suspect a lot do not, or have forgotten them in any real detail.

  61. Concerned defender says:

    I think “sending it to trial to figure it out” is an injustice where the accused can never win.  A win for the accused is beating the allegation, but he’s still quite possibly has his career ruined, reputation ruined, 6 months of unreal stress, and lost trust of many people.  He will also likely face administrative separation.  How is that a “win?”  Will the “victim” face ANY administrative or legal consequences?  Oh, and he has as poor as a 66% chance of losing, which means a scorched earth ruined life of prison, federal conviction, and scarlet letter indefinitely, lost career, lost benefits possibly totaling over a million dollars.  Nope.  Prosecutors should feel 100% confident in their case before titling someone with such an allegation.  Any reservations and they should put the complaining witness through her paces.  I’ve simply seen too many liars and vindictive complaining witnesses to trust them all.  
    Here’s a real world UCI example in one of my cases.  Client charged with 120 (among other things).  Article 31 #1, unsubstantiated.  Female not credible.  TC holds another ART 32 #2.  This allegation again unsubstantiated.  They charge him with it anyway and go to trial.  It survived a motion to dismiss.  At trial, acquittal on this same Article 120 offense.  So, if you’re keeping track, THREE non-lawyer independent bodies looked at the evidence on either a preponderance or BRD standard and all agreed there was insufficient evidence.  So, that begs the question, why can’t a TC or MJ or SJA also see this, and why is this even charged?  There is only one reason.  UCI.  An overzealous prosecution team with glory in their eyes or fear in the gut about not charging the crime…  that is not justice.  
     

  62. Concerned defender says:

    I don’t like the idea of leaving a cross complaint up to the Panel.  That may actually force them to convict lest the slobbering “victim” face trial.  
    I do however think that it should be mandatory that there is a prosecution toward the “victims” for perjury of false swearing if there is an acquittal on sex assaults.  While this may “chill” them from coming forward, if they have some skin in the game they may think twice about making false allegations.  Even if there isn’t an actual prosecution, the prosecutors should be required to sternly inform them, even if it’s a bluff, that if they are lying then they will be forced to prosecute the complaining witness for making a false report.  That would self-police.  I bet overnight the majority of the false complaints would drop off.
    But the feminists would have a heart-attack because the “reporting” would go down and they’d lose funding and their big lies about most women get raped would be exposed. 

  63. Ed says:

    Concerned Defender-You are correct that false accusations and prosecution of marginal cases is a serious problem as is the pusillanimous conduct of many SJA’s and CA’s.  That doesn’t justify prosecuting complaining witnesses in a marginal case that results in an acquittal. Sometimes everyone actually believes what they are saying. What is needed is a serious public lobbying effort to expose what people like Jackie Speier  and Claire McCaskill have done  to pervert what was  a generally fair military justice system. Prosecuting a false complainant should be reserved for he most obvious and egregious instances. Another thought  in cases like Brandon Wright I suggest volunteer attorneys in different jurisdictions to represent Defendants in state bar grievances concerning UCI There could be a clearing house for volunteers in the different jurisdictions. That might wake some TC  and/or SJA up.

  64. DCGoneGalt says:

    Concerned Defender:  I am certainly no 2%er but an acquittal is hardly evidence that an allegation is false.  There are certainly more than 2% false allegations in the military.  However, the vaaaaaaast majority of  demonstrably false allegations never make it to trial.  The vast majority of false allegations, demonstrable or not, never make it to trial.  If there is proof of a false allegation then I agree with you that it should be addressed as there is, short of child molestation, no more damaging spear you can throw at someone nowadays.  But an acquittal is a finding that an allegation is not proven BARD, it is not even close to a finding of falsity or innocence.

  65. DCGoneGalt says:

    Ed:  I feel like I am the apologist for the government right about now . . . crazy. 
     
    Good luck with winning over the public.  The public doesn’t care about what is going on except for “rape is bad, lots of rapes happen in the military, must stop rape”.  As for the politics, the POD People, like any social justice warriors, are immune to facts.  I think the best thing that can occur is keep fighting to crush the government in court when they go over the line.  Eventually the waste of time and resources will lead commanders to understand they simply must push back and reassert commonsense into the equation.  And I do not see anything that TCs/SJAs did that would be an ethical issue in the Wright case, other than at one point in looked like UCI evidence was being withheld.  However, that is likely not coming from a TC or SPCMCA/GCMCA SJA.  It is likely coming from higher up the JA chain and if there is a UCI issue it would arguably be from the former TJAG “phone call” dynamic but did the new GCMCA SJA who ultimately recommended referral know of TJAGs interest in the case Yeah, even if the new SJA didn’t know of the personal interest of TJAG . . . a case is taken away from two SJAs who recommended against referral and a GCMCA who didn’t wish to refer and when it gets to you the message is . . . this is going to trial. While, I find it hard to believe the new SJA didn’t know of TJAGs personal interest, I don’t think you can prove an ethical issue and I wouldn’t recommend filing an ethics claim that you can’t prove. 

  66. Concerned defender says:

    However, the vaaaaaaast majority of  demonstrably false allegations never make it to trial.

    Well, I’m just one attorney.  Yet, in my experience I’ve seen a loooooooooottt of pretty unbelievable (e.g. false, with clear motives by the complaining witness to lie) allegations.  They are obvious, if you are looking to actually challenge the witness versus just taking it all at face value.  Like any critical thinking, you have to look beneath the surface at motives such as divorce and child custody, soured reputation, regret for voluntary decisions and actions (gee, what did you think was going to happen when you were making out with the guy in the alley, got really drunk, went home with him, and took off your clothing in his bed?), getting in trouble for underaged drinking or a GO 1 room violation, husband/boyfriend found out she cheated, etc.
    Fortunately I’ve gotten acquittals, virtual acquittals or Chapter 10s (when folks were reasonable) for the bulk of these fake allegations.  But I’d say that most of my 120 cases should have never seen a Courtroom.  There are few reasons why these ended up in court, and UCI is the leading cause.  Few TCs want more caseload.  Commanders often want the Soldier gone fast, which can happen with a Chapter 10 in the less egregious cases.  On these iffy cases, we’re left with either personally overzealous prosecutors or commanders (infrequent) or UCI “All sex assaults are prosecuted” which fits the current agenda.  Given the efforts of SHARP, the “Invisible War” mandatory viewings, the POTUS comments, the SecDef actions, the Congress comments, etc, it’s clear if your paying attention there is intense UCI…  
    The Courts are purposefully refusing to acknowledge it because it would and does undermine the system.  They won’t set the precedent, and that is intellectual dishonesty.

  67. afjagcapt says:

    I do however think that it should be mandatory that there is a prosecution toward the “victims” for perjury of false swearing if there is an acquittal on sex assaults.  While this may “chill” them from coming forward, if they have some skin in the game they may think twice about making false allegations. 

     
    But Concerned Defender, if we just prosecute them after the acquittal then they’d get the presumption of innocence which seems unfair since acquittal = falsity. Since, based on the acquittal, the report was BRD false AND, by falsely reporting it, they’ve already bismirched the Accused’s good name by labeling him (or her) a rapist, wouldn’t the fairest thing be that the Accused just gets to rape the lying/vindictive/evil/whatever-else after the acquittal? That would probably tamp down all these false reports right?

  68. Concerned defender says:

    But Concerned Defender, if we just prosecute them after the acquittal then they’d get the presumption of innocence which seems unfair since acquittal = falsity. 

    The presumption of innocence is just that.  One can still be charged.  Accused are presumed innocent, right?  What I’m saying is that the “victim” needs to understand that she will be investigated for a false accusation, since that’s generally the only significant evidence (absent other evidence of a violent rape or texts – but these will all likely result in a conviction and be a non-issue).  Stated otherwise, acquittals will overwhelming come down to credibility – e.g. the victim lies or her story is just too far-fetched.  We have a mendacity sentencing enhancement instruction if the accused is deemed dishonest, right?
    When it occurs that he Panel acquits, the government should be required to turn the investigation back on the complaining witness and investigate her with an eye to prefer charges.  Everyone wins really, because this would clean up the fake allegations overnight if the “victim” had some actual skin in the game.  As it stands, this is a risk-free assault against a man with whom a woman is pissed at for some reason.  And of course this will lead and has led to a fake spike in reporting assaults.  
     

  69. stewie says:

    I simultaneously feel compelled to state just how ridiculous your idea as while recognizing the futility of that exercise. You clearly seem to think acquittals only or even primarily happen because the AV is a liar.  Most acquittals happen because sex assault between two people, with no other witnesses, is really hard for the government to prove (as it should be) and thus it doesn’t take all that much create reasonable doubt.
     
    Which is probably why the conviction rate is now and historically just a little over 50 percent for contested cases.
     
    I’m trying to imagine what anti-concerned defender would look like…I can only imagine they would advocate for a preponderance standard for sex assault cases at findings, or that AV’s should be allowed to not have to testify and should just be allowed to submit a statement so as to not be traumatized again.

  70. k fischer says:

    Stewie,
     
    Here is a good example of the appellate court sharing its opinion why it thought the Government’s case was weak:

     
    Evaluating the third Fletcher factor, we find the weight of the evidence

     
    supporting the convictions involving SSG CC was weak. Staff Sergeant CC
     
    accepted appellant’s offer of his clothes to wear as pajamas during the night in
     
    question, but she was unable to explain what prompted appellant to offer them.
     
    Staff Sergeant CC did not report her allegations until multiple years after the
     
    incident in Friedberg. Though SSG CC testified that she tried to maintain a
     
    minimal, normal working relationship with appellant after the incident, she agreed to
     
    travel alone and meet him shortly afterward in Heidelberg, shopping and dining with
     
    him. Staff Sergeant CC also provided appellant with multiple photographs of
     
    herself, scantily clad, testifying that she sent him these photographs so that he might
     
    have them reduced to and returned to her as a pin-up style painting. She also
     
    testified that she could not remember whether she sent him the photographs before
     
    or after the Friedberg trip, though the trip occurred shortly after her moving to
     
    Germany and meeting appellant for the first time.
     
     
    Weak.  Now, used to, I could show that a case was weak through Article 32 testimony, and we really wouldn’t have to call the complaining witness to the stand at an Article 39(a).  But, that ship has sailed, so perhaps the Defense could show the MJ that the case is weak by requesting a 39(a) on UCI motions and calling the complaining witness as it’s first witness.  I don’t think anything prevents that…….yet.