In United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016) (link to slip op.), the Air Force CCA considers convictions of forcible sodomy and dereliction of duty that were based on the following facts:

In the fall of 2011, Appellant and a female Airman, NT, began dating while assigned together at technical school training. Their relationship included consensual sexual contact. On 13 January 2012, the couple attended a birthday party for NT at a local hotel. Early the next morning, NT joined Appellant in a nearby hote room. She testified that once there, Appellant forced her to engage in oral sodomy.

The two continued their consensual sexual relationship after this incident. After Appellant was transferred to another base in February 2012, NT arranged to meet him at a hotel room on 10 March 2012. Based on NT’s account of this encounter, Appellant was charged with aggravated sexual assault for forcing her to engage in intercourse, aggravated sexual contact for grabbing her breast, and assault consummated by a battery for striking her with his hand. Appellant was acquitted of all of these March 2012 charges.

Upon returning to his base after the March 2012 incident, Appellant used his position as a member of the medical operations squadron to access NT’s medical records. He pled guilty to willful dereliction of duty for doing so.

Slip op. at 2. The appellant was sentenced to confinement for six months, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge. On appeal he asserted numerous errors, including that “he was denied due process under the United States Constitution when he was tried by a panel consisting of five members who were not required to be unanimous in their vote to convict.” Slip op. at 2.

The CCA avoids directly addressing the asserted due process violation by finding the evidence supporting the forcible sodomy conviction to be factually insufficient:

It should go without saying that a court-martial is a most serious matter, and the requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of the military justice system. A “society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” In re Winship, 397 U.S. 358, 363–64 (1970). In the military justice system, where servicemembers accused at court-martial are denied some rights provided to other citizens, our unique factfinding authority is a vital safeguard designed to ensure that every conviction is supported by proof beyond a reasonable doubt. See Ex parte Quirin, 317 U.S. 1, 40–41 (1942) (stating that there is no constitutional right to a trial by jury in courts-martial); O’Callahan v. Parker, 395 U.S. 258, 265 (1969) (recognizing differences between courts-martial and civilian criminal proceedings),overruled on other grounds by Solorio v. United States, 483 U.S. 435, 440–41 (1987). This authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary responsibility.” United States v. Jenkins, 60 M.J. 27, 29 (C.A.A.F. 2004). Most cases reviewed by this court are deemed factually sufficient. However, in this instance, we simply are not personally convinced that Appellant is guilty of the forcible sodomy offense. Accordingly, we dismiss Specification 1 of Charge III.

Slip op. at 4-5.

The CCA affirms the appellants guilty plea and reassesses the sentence to reduction to E-1, forfeiture of $1,000 pay
per month for two months, and a reprimand.

Readers may recall my commentary from 2013 that a court-martial panel is no jury.

One Response to “Avoiding a due process challenge to the military justice system, the AFCCA gets somber”

  1. k fischer says:

    Congress’s take away: 
    1. Appellate Judges who have not seen the witnesses testify should not be able to overturn a conviction for factual insufficiency and second guess panels who do, even though those panels do not have any legal training (like civilian juries do).  So, we should prohibit this by allowing Military Judges to overturn a conviction. 
    2. However, we should completely disregard that civilian juries must convict only when they are unanimous, so we will leave the 2/3’s to convict requirement in place because that helps the Government get convictions.