A few weeks ago – in this post – I discussed the NMCCA’s per curiam opinion that reversed convictions of rape and forcible sodomy because the CCA found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).

The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge. Notably, the appellant was acquitted of aggravated sexual assault by engaging in a sexual act with a person who was substantially incapacitated that was charged in the alternative with the rape charge. Slip op. at 2 n.1.

Reversing the findings, the CCA concluded that “hav[ing] made allowances for not having heard and observed the
witnesses. . . . and having considered the unique facts of this case, we are not personally convinced of the appellant’s guilt of rape or forcible sodomy.” Slip op. at 13.

Now the Judge Advocate General of the Navy has certified the case to CAAF:

No. 16-0068/NA. United States, Appellant v. Dustin M. Clark, Appellee. CCA 201400232. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

ARTICLE 66(c), UCMJ, REQUIRES THAT COURTS OF CRIMINAL APPEALS CONDUCT A PLENARY REVIEW OF THE ENTIRE RECORD AND “RECOGNIZ [E] THAT THE TRIAL COURT SAW AND HEARD THE WITNESSES.” IN REVERSING APPELLEE’S CONVICTIONS FOR FACTUAL INSUFFICIENCY WITHOUT ACKNOWLEDGING THE MILITARY JUDGE’S NON-GUILT SPECIAL FINDINGS DID THE LOWER COURT FAIL TO CONDUCT A COMPLETE ARTICLE 66(c) REVIEW?

IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW, THE LOWER COURT USED A DIFFERENT STANDARD OF REVIEW FOR THE NON-GUILT SPECIAL FINDINGS MADE BY THE MILITARY JUDGE UNDER RULE FOR COURTS-MARTIAL 918(b) THAN THAT ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS. SHOULD THE LOWER COURT HAVE REVIEWED THE MILITARY JUDGE’S NON-GUILT SPECIAL FINDINGS UNDER THE CLEAR ERROR STANDARD ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS?

Significantly, other than the footnote mentioned above, the CCA’s decision does not discuss the military judge’s “non-guilt” findings (presumably this means the acquittal of the alternative charge), nor does the decision reference R.C.M. 918 or any special findings made by the military judge.

Additionally, I’ve been advised that Clark has now been released from confinement.

5 Responses to “The Navy JAG certifies Clark”

  1. Futility says:

    Clark has been judicially acquitted and there’s nothing CAAF can do about it.  Even if NMCCA’s assessment of the facts happens to be wrong, “that is of no moment.”  It is an acquittal “regardless of whether the court’s decision flowed from . . . an erroneous interpretation of governing legal principles.”  The fact that NMCCA’s decision might be legally infirm “affects only the accuracy of the determination to acquit, not its essential character.” Evans v. Michigan, 133 S. Ct. 1069, 1075-1076 (U.S. 2013).  

  2. Tami a/k/a Princess Leia says:

    Sigh.  So difficult to see appellate litigation being litigated so poorly, like watching a train wreck.  Appellate courts can’t review not guilty findings, there’s nothing to review!  So what’s up with referencing “nonguilt” findings?
     
    As far as this case goes, I don’t see anything unique about the facts.  Seems pretty common.  Drunk people hooking up and not remembering everything they did.  Remembering some things but giving general “something happened” that they normally wouldn’t do when sober.  No evidence of any force used in excess of what happens during “normal” sex.  “Normal” sex can  hurt too.

  3. DCGoneGalt says:

    Appellate review of Art 120 acquittals . . . what an idea for the next NDAA!

  4. k fischer says:

    DCCG,
     
    Stewie:  An argument that didn’t work for Franklin at Aviano.  An argument that didn’t work for Helms at Vandenberg.
     
    DCCG:  For Pete sakes, Stewie, do you think that’s the same as three legally trained appellate judges acquitting an NCO for rape because they had reasonable doubt based on a thorough review of the record of trial?  These guys aren’t nonlawyer Convening Authorities!
     
    Fisch:  Don’t look now DCCG, but you’re making an argument.  

  5. Alfonso Decimo says:

    An agency’s action can be nullified as ultra vires (outside the scope of its authority), but not a court’s action, such as the NMCCA’s action in this case to dismiss with prejudice. “A court’s power to decide a case is independent of whether its decision is correct, which is why even an erroneous judgment is entitled to res judicata effect.” FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984). Perhaps Congress could limit the authority of the CCA’s to apply the factual sufficiency standard, but I don’t think CAAF can grant the Government any relief on this certified issue.