In this post I discussed the Army CCA’s decision on a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), in which a three-judge panel of that court reversed a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The CCA concluded that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.

CAAF has stayed the trial proceedings and will review the CCA’s decision:

No. 16-0026/AR. U.S. v. Antiwan M. Henning. CCA 20150410. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, on appeal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), Appellant’s motion to stay the trial proceedings, and Appellee’s motion for leave to exceed the word limit, it is ordered that Appellant’s motion to stay the trial proceedings is hereby granted, pending further order of the Court, that Appellee’s motion to exceed the word limit is hereby granted, and that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT APPLIED THE WRONG STANDARD OF REVIEW TO THIS ARTICLE 62, UCMJ, APPEAL WHEN IT FOUND THE MILITARY JUDGE MADE ERRONEOUS FINDINGS OF FACT AND ERRONEOUS CONCLUSIONS OF LAW.

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedure, no further pleadings will be filed.

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