CAAF will hear oral argument in the certified Navy case of United States v. Clark, No. 16-0068/NA (CAAFlog case page), on Tuesday, March 15, 2016. The case presents a Government challenge to the reasoning of a three-judge panel of the Navy-Marine Corps CCA that found the appellee’s convictions of rape and forcible sodomy factually insufficient.
The convictions were based on allegations that the appellee used force to engage in vaginal and oral intercourse with a woman who had very little memory of the acts due to her state of intoxication at the time of the encounter. The primary evidence against the appellee was the woman’s testimony based on her fragmented memory. The appellee 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.
Significantly, the military judge made special findings at the request of the defense. The findings included that the military judge found the alleged victim’s testimony to be credible and that he found the appellee’s pretrial statements to criminal investigators demonstrated consciousness of guilt.
Nevertheless, considering the evidence presented at trial, and employing its unique factual sufficiency powers, the NMCCA found the evidence insufficient to sustain the convictions:
We are unconvinced by the record before us that the Government met their heavy burden of proving the required element of force for either offense. While SW’s description of appellant holding her by her arms provided some evidence of force, she could not link this action by the appellant to any further act, sexual or otherwise, and the disorganized, potentially non-sequential order of her memories prevents us from concluding that the charged forcible sexual acts necessarily followed.
United States v. Clark, No. 201400232, slip op. at 13 (N-M. Ct. Crim. App. Jul. 14, 2015). As a result, the CCA dismissed the charges with prejudice.
The Judge Advocate General of the Navy then certified two issues to CAAF:
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?
Article 66(c) permits a courts of criminal appeals to approve only findings that are correct “in law and fact,” and it instructs that the court “may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” It is the last ten words of that statutory provision that are at issue in this case, as the Government asserts that the CCA “merely paid lip service to [them]” in its decision. Gov’t Br. at 46. The Government asks CAAF to require the CCA to give:
considerable weight to the findings of the Military Judge and, if it disagrees, to justify its departure from those findings by explaining why its inability to see and hear the witnesses is irrelevant to its conclusions.
Gov’t Br. at 47. Further, the Government asserts that factual issues addressed in special findings (the non-guilt findings) should be reviewed under the clearly erroneous standard.
The appellee’s response accuses the Government of seeking judicial amendment of Article 66(c) to make is “less protective of an accused.” App. Br. at 9. The appellee’s brief also highlights that the foundation for the Government’s argument is the concise nature of the CCA’s decision (what the Government terms “lip service”). Yet the CCA is not required to shows its analysis in meticulous detail, a point the appellee notes that the Government makes to support its victories:
It is well-settled that the NMCCA is not required to detail all of its analysis. The Government recently has taken this position in at least one other case:
Appellant’s mere disagreement with the Panel’s decision is neither grounds for en banc reconsideration nor support for the claim that he did not receive proper review pursuant to Article 66 of the Uniform Code of Military Justice. Contrary to his argument, Appellant is not owed any further explanation from this Court.
Assuming arguendo that the NMCCA was required to consider the military judge’s special findings, nothing in its opinion shows that it did not do so sufficient to overcome a presumption of regularity in the appellate process.
App. Br. at 16 (quoting a Gov’t answer to a petition for reconsideration in an unrelated case).
The Government’s response to this is functionally an assertion that it is entitled to more:
[Appellee] merely relies on a presumption of appellate regularity to support his claim that the lower court did, in fact, consider the Special Findings. Furthermore, these inconsistencies are completely unaddressed by the lower court. This lack of analysis, analytical reconciliation, or even mere mention belies Appellee’s reliance on “a presumption of appellate regularity” and amply demonstrates the lower court’s failure to consider the “entire record” as it was required to do pursuant to Article 66(c).
Reply Br. at 14.
• NMCCA opinion
• Blog post: An appellant’s sex assault convictions are reversed, but he isn’t released from confinement (yet)
• Blog post: The Navy JAG certifies Clark
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s reply brief
• Blog post: Argument preview