Two new Air Force certified cases were docketed at CAAF on Wednesday. In the first case, the AFCCA found (link to slip op.) that the military judge improperly admitted evidence of a prior alleged sexual offense under Mil. R. Evid. 413:

No. 16-0053/AF. U.S. v. Shelby L. Williams. CCA 38454.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE TRIAL DEFENSE COUNSEL SUFFICIENTLY OBJECTED TO THE ADMISSION OF THE EVIDENCE RELATING TO A PREGNANCY AND MISCARRIAGE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ADMITTED TESTIMONY PURSUANT TO MIL. R. EVID. 413, AND ERRED IN FINDING PREJUDICE.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED A LEGAL ERROR BY DENYING THE UNITED STATES’ MOTION TO SUBMIT A DECLARATION FROM AN EXPERT WHO ADDRESSED THE MEDICAL CONCLUSIONS RAISED FOR THE FIRST TIME IN THE MAJORITY OPINION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

In the second case, the AFCCA (link to slip op.) applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the HIV-positive appellant’s pleas of guilty to aggravated assault with a means likely to produce death or grievous bodily harm, finding insufficient evidence of a risk of transmission of HIV from the appellant to his sexual partners. However, the CCA affirmed other pleas of guilty, and reassessed the sentence, resulting in the dismissal of the assault charge and prompting the certification:

No. 16-0054/AF. U.S. v. Gavin B. Atchak. CCA 38526.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN SETTING ASIDE AND DISMISSING THE SPECIFICATIONS OF AGGRAVATED ASSAULT WITHOUT AUTHORIZING THE CONVENING AUTHORITY TO ORDER A REHEARING FOR THE LESSER INCLUDED OFFENSES OF ASSAULT CONSUMMATED BY A BATTERY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

Additionally, CAAF granted review in a Marine Corps case involving human lie detector testimony, the admission of which the CCA found was obvious but harmless error:

No. 15-0754/MC. U.S. v. Beau T. Martin. CCA 201400315.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE HUMAN LIE DETECTOR TESTIMONY OFFERED BY THE ALLEGED VICTIM’S HUSBAND WAS NOT MATERIALLY PREJUDICIAL.

Briefs will be filed under Rule 25.

The NMCCA’s decision is available here.

8 Responses to “Two Air Force certifications, and a grant in a Marine Corps case”

  1. Dew_Process says:

    The continuation of trying to salvage legally flawed convictions . . . . SMH!

  2. k fischer says:

    So, one case where a female marries a guy, says nothing about him raping her until they have been separated and going through a contentious divorce, where she testifies that he had sex with her numerous times while she was asleep. And four witnesses testified that she was not a truthful person.  Convicted, sex offender registration, two years in jail and a BCD.
     
    A female Marine who made a false allegation before gets a male Marine convicted, sex offender registration, BCD, and no jail time for ramming his fingers into her vagina when she is asleep in a trial where her own husband states that he did not believe when she made an allegation that the male Marine denies ever occurred.  More than one witness testified that she was untruthful and one testified that she made a false sex assault allegation against him.
     
    Sounds legit……carry on….
     

  3. DCGoneGalt says:

    k fischer:  Rational people are fleeing military justice. 

  4. K fischer says:

    Sounds like rational people are fleeing the military because these two cases were panels who voted to convict because they had no reasonable doubt with these facts……

  5. Charlie Gittins says:

    These are the cases I could see coming when I decided it was time to leave.  Our conservative, careerist officer corps understands what it demanded of them and they suspend their ability to critically think because they have been told sex assault is gigantic problem in the military and their Commander-in-Chief and their Commandant expects them to do something about it.  Geez . . . . .  

  6. Alfonso Decimo says:

    I would need to read the ROT, but U.S. v. Williams does make me wonder! The defense did not object to the evidence for which the conviction was overturned, so perhaps the ROT is worth reading. The judge did not make a record of her admissibility analysis, so it’s entitled to less deference from the CCA … but the defense did not object to the evidence, so why would the judge include that analysis!  It seems like the CCA wanted to overturn the conviction, but didn’t want to invoke factual insufficiency.

  7. k fischer says:

    AD,
     

    Oh wise one, I concur.  I wish as a matter of law our military courts of appeals would make it easy on everyone and provide the following analysis:
     
    When during the course of a rocky marriage a female first reports that she was raped two years ago on a date certain within 90 days first meeting the accused and within one month prior to marrying the Accused, when the alleged victim was not pregnant, and both parties are of similar rank in the military or stature in society, NOBODY IN THEIR RIGHT MIND could be convinced beyond a reasonable doubt that the allegation is true and the accused must be acquitted.

     
    Of course, Williams might have had a paraphilia where he enjoys initiating or engaging in intercourse with unconscious females, which is what the Cosby accusers sound like they are going after.  But, certainly AFOSI interviewed all of his previous exes and asked whether they were awaken by him engaging in intercourse with them because if Williams had such a paraphilia, then this wouldn’t be the first time…..or the last…..  If there are no other vics, then I really call into question, SG’s truthfulness and the factual sufficiency upon which the findings are based.

  8. k fischer says:

    I just read this:
     

    In 1765, the English judge Sir William Blackstone wrote that “it is better that ten guilty persons escape, than one innocent suffer.” We can slightly alter the concept when speaking of sexual assault and come to the conclusion that it is better that 10 acts of potentially welcome sex be avoided than that even one act of nonconsensual sex occur.
     

    The quote, and the article, is really good.  I’d like to say that I came up with it, but h/t to Professor Dershowitz.