CAAF decided the Army case of United States v. Hills, 75 M.J. 350, No. 15-0767/AR (CAAFlog case page) (link to slip op.), on Monday, June 27, 2016.

In a hugely-significant decision, CAAF holds that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence is constitutionally erroneous because it undermines the presumption of innocence. CAAF concludes that the error in this case was not harmless beyond a reasonable doubt because of the overall weakness of the Government’s case, and it reverses the decision of the Army CCA and the appellant’s conviction of abusive sexual contact, authorizing a rehearing.

Judge Ryan writes for a unanimous court.

Sergeant Hills was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas of not guilty, of one specification of abusive sexual contact in violation of Article 120. The conviction arose from an alleged sexual encounter with a heavily intoxicated female soldier. Hills was acquitted to two additional specifications of abusive sexual contact arising out of the same encounter with the same alleged victim. The members sentenced him to confinement for six months, reduction to E-1, and a bad-conduct discharge.

At trial, and over the objection of the defense, the military judge allowed the prosecution to use the three charged violations of Article 120 as evidence to prove Hills’ propensity to commit those same offenses. While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998).

For years those Rules were used to introduce evidence of uncharged acts against an accused, and not to argue that the charged acts themselves were evidence of an accused’s propensity to commit those same alleged offenses. But our #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413, as three courts of criminal appeals issued opinions in 2015 approving the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses, just as was done in Hills.

The Army CCA considered this use of the charged offenses and affirmed the conviction. CAAF then granted review of one issue:

Whether the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

In today’s decision a unanimous CAAF holds not only that the military judge did abuse his discretion but also that the instructions he gave to the members undermined Hills’ presumption of innocence, creating constitutional error (that must be found to be harmless beyond a reasonable doubt to sustain the conviction).

Judge Ryan’s opinion begins with some harsh words for the Government’s assertion that Mil. R. Evid. 413 permits using the charged offenses to show propensity:

Though a question of first impression, it seems obvious that it is impermissible to utilize M.R.E. 413 to show that charged conduct demonstrates an accused’s propensity to commit … the charged conduct.

Slip op. at 5 (ellipses in original) (emphasis added). Noting that neither CAAF “nor any federal circuit court has permitted the use of M.R.E. 413 or Fed. R. Evid. 413 as a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct,” slip op. at 6, Judge Ryan proceeds to highlight multiple reasons why such use of the charged offenses is improper.


the structure of the rule suggests that it was aimed at conduct other than charged offenses. The notice provision in M.R.E. 413(b), which requires the government to disclose the proposed M.R.E. 413 evidence to the accused five days before trial, logically implies that only evidence of uncharged offenses (of which the accused would not otherwise be aware absent disclosure) are contemplated by the rule.

Slip op. at 7. Next,

the effect of M.R.E. 413 was “‘to put evidence of uncharged offenses in sexual assault … cases on the same footing as other types of evidence that are not subject to a special exclusionary rule.’” Wright, 53 M.J. at 480 (alteration in the original) (quoting 140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep. Molinari)). Charged misconduct is already admissible at trial under M.R.E. 401 and 402, and it is not subject to exclusion under M.R.E. 404(b). Thus, as a matter of logic, it does not fall under M.R.E. 413, which serves as an exception to M.R.E. 404(b).

Slip op. at 7-8. Additionally,

the legislative history of the federal counterpart, Fed. R. Evid. 413, also suggests that M.R.E. 413 was not designed to apply to charged misconduct.

Slip op. at 8 (citation omitted). Finally,

The rule was intended to address recidivism, cf. Wright, 53 M.J. at 481, and it permits bolstering the credibility of a victim because “[k]nowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of [the victim’s] claims,” Karp, supra, at 21. While M.R.E. 413 was intended to permit the members to consider the testimony of other victims with respect to an accused’s past sexual offenses, see Karp, supra, at 21, there is no indication that M.R.E. 413 was intended to bolster the credibility of the named victim through inferences drawn from the same allegations of the same named victim.

Slip op. at 8 (alternations in original). This last reason, however, is perhaps unique to the facts of this case where there was only one alleged victim. A different case, involving multiple alleged victims, could avoid this concern by enabling each to bolster only the other (though that would likely require a tailored instruction).

Considering these factors, Judge Ryan explains that the military judge abused his discretion when he allowed the prosecution to use the charged offenses as evidence of Hills’ propensity to commit the charged offenses because the military judge “operated under an erroneous view of the law.” Slip op. at 8-9.

Yet CAAF isn’t finished yet, as Judge Ryan continues with a finding that:

It is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent.

Slip op. at 10 (emphasis added). A footnote distinguishes charged from uncharged misconduct on the basis that “no presumption of innocence attaches to uncharged conduct.” Slip op. at 10 n. 3.

Judge Ryan then analyzes the instructions given to the members in this case and concludes that they:

provided the members with directly contradictory statements about the bearing that one charged offense could have on another, one of which required the members to discard the accused’s presumption of innocence, and with two different burdens of proof — preponderance of the evidence and beyond a reasonable doubt. Evaluating the instructions in toto, we cannot say that Appellant’s right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt was not seriously muddled and compromised by the instructions as a whole.

Slip op. at 11. And while Judge Ryan doesn’t identify the source of the instructions given to the members, the Army CCA’s opinion did:

At trial, the military judge gave the standard “Spillover” instruction in Note 1, paragraph 7-17 of the Military Judges’ Benchbook, followed by a tailored instruction on the use of charged Mil. R. Evid. 413 evidence to prove propensity as provided in Note 4 of paragraph 7-13-1 (Other crimes, wrongs, or acts evidence). See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter Benchbook] (1 Jan. 2010).

United States v. Hills, No. 20130833, slip op. at 7 (A. Ct. Crim. App. Jun. 25, 2015) (link to slip op.) (marks in original). A later footnote in that decision also noted that “the military judge’s instructions followed the language of Benchbook Instruction 7-13-1, Note 4.” Id., slip op. at 14 n.8.

CAAF has seemingly repudiated that instruction in its entirety,finding that giving it is constitutional error. As Judge Ryan writes:

Quite simply, we hold not only that charged offenses are not properly admitted under M.R.E. 413 to prove a propensity to commit the charged offenses, but also that the muddled accompanying instructions implicate “fundamental conceptions of justice” under the Due Process Clause by creating the risk that the members would apply an impermissibly low standard of proof, undermining both “the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt,” Wright, 53 M.J. at 481 (internal quotation marks omitted) (citation omitted).

Slip op. at 12.

Finally, considering whether the instruction might have been harmless under the particular facts of this case, Judge Ryan’s analysis that could well describe the facts of many present-day military sexual assault prosecutions:

We note that the Government’s case was weak as there was no eyewitness testimony other than the allegations of the accuser, the members rejected the accuser’s other allegations against the Appellant, and there was no conclusive physical evidence. We cannot know whether the instructions may have tipped the balance in the members’ ultimate determination. The instructions were, therefore, not harmless beyond a reasonable doubt.

Slip op. at 13.

By any measure this opinion is a blockbuster. Because abuse of discretion is the most deferential standard of review, CAAF’s conclusion that the military judge abused his discretion is the strongest of precedents. It is even stronger for its unanimity.

Edited to add: And while this case addresses propensity evidence in adult sex cases, CAAF is also considering the same issue under Mil. R. Evid. 414 (which applies in child sex cases) in United States v. Moynihan, No. 16-0277/AR (discussed here).

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

39 Responses to “Opinion Analysis: The prosecution may not use the charged offenses to show propensity to commit the charged offenses in United States v. Hills, 15-0767/AR”

  1. Brian Bouffard says:

    CAAF gets it right!  The scary thing is the tortured logic of the lower courts that allowed this issue to reach them.
    “He’s the kind of guy who would do the things we charged him with.  How do we know?  Well, just LOOK at what he’s charged with!”

  2. k fischer says:

    “Kendall Hills” sounds like such a nice name for a trailer park.  And, C.A.A.F. reversed notwithstanding my vomiting litmus test for PBARD in sex assault cases?  Quite frankly, I am a little surprised.   The good news for Government counsel is that now there is some clear authority to ensure TC’s don’t screw up a perfectly good too drunk to consent sexual assault case in the future by requesting a 413 instruction on the continuing conduct of the alleged perpetrator with one vic.
    On a side note, Hills should have known better than to wear white sweatpants to a party more than two months after Labor Day.

  3. The Silver Fox says:

    Score one for the Constitution.

  4. PT Lawyer says:

    Thank God! I watched this train wreck from a distance, convinced that the military court system had lost it’s mind! The strongest point made by this case is the clear demonstration of the effect of political brainwashing on those inside the military. When the leaders say, “convict them at all costs to get Congress off our butts,” there is no end to the torture that military jurists will inflict on the law to get the desired result! Credit to Bouffard for word choice, well written sir.

  5. Peanut Gallery says:

    Seems you shouldn’t be admitted to law school if you can’t get this one right.  Glad my tax money went into the government’s arguments.

  6. smileyface says:

    It is absolutely amazing that it took CAAF to finally sort out the obvious.  The logic train derailed on this one before it even left the station.

  7. Bill Cassara says:

    CAAF’s decision could be summed up as “duh.”   Pretty strong slap down of ACCA.

  8. Matt says:

    Of course on rehearing, the government will argue that it can still use the same evidence for 413 because he was acquitted of those allegations so now they won’t be charged. 

  9. RKincaid3 says:

    Excellent decision!  

  10. Concerned Defender says:

    At the risk of being a broken record – I would strongly like to see state bar grievances and possibly dis-barment of those TCs, Judges, and ACCA Judges having any hand in this absurdity.  A 1st Year Law Student would have gotten this one right.  It is a totally politically motivated EMBARRASSMENT to the profession of practice of law for this vein of absurdity to fester in the legal profession (a la Maralyin Mosby) who should be scrutinize, sanctioned, and have their law licenses in serious doubt.   Judge Ryan gives a scathing review of the most fundamental basics that any criminal law practitioner should clearly understand.  If you fail this simple test, I have NO confidence in your legal judgement or ability. Good grief!

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

    Excellent decision–completely makes sense if we are to give  the presumption of innocence and spillover instruction any meaning.  As far as CAAF giving ACCA the smackdown, this isn’t the first time CAAF has done so.  Or the NMCCA.  Or the AFCCA.  Or the CGCCA.  What does that say about “military” justice?  Shouldn’t the military appellate courts be able to regulate their respective services?
    This case provides a valuable lesson for TCs:  Weed out the weak allegations and prosecute only the strongest.  Use MRE 413 to get in evidence of the weak cases.  Even in a multi-victim case, do NOT charge the weak cases!

  12. Zachary D Spilman says:

    As far as a smackdown of any CCA, I don’t read CAAF’s opinion so harshly. 

    The Army court was hardly alone in affirming the use of charged offenses for propensity purposes; this was also hardly the Army’s first case. This case wasn’t even among those that put this issue on our top ten list: United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015); United States v. Bass, 74 M.J. 806 (N.M. Ct. Crim. App. Aug. 18, 2015) (discussed here); United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (unpub. op) (discussed here), pet. for rev. filed, __ M.J. __, No. 16-0155/AF (C.A.A.F. Nov. 25, 2015). 

    Note, if you will please, that CAAF denied review in Barnes (the first – I believe – Army case to squarely address this issue). The petition in Maliwat is still pending to my knowledge, and I don’t believe any petition was filed in Bass

    With that history the Government walked into this case feeling pretty confident – probably too confident – about its position. There’s a lesson that the Government appellate divisions should (but almost certainly won’t) take away from the strength of CAAF’s opinion. 

    As for the matter of professional responsibility consequences for the lawyers involved, that’s absolute nonsense. 

  13. Concerned Defender says:

    @ Zach – please shore up your “absolute nonsense” part.   We’ve got “abuse of discretion” as part of the ruling.  Surely there are consequences if a defense attorney were to fail in an equally obvious and colossal fashion. So why isn’t a government lawyer held to some standard, and why should consequences only be unilateral to D and not P lawyers, or Judges, to demand some level of accountability?   Seems to me the MJ, upon Defense objection, might take pause here.  “Gee, this is a case dispositive issue.  Perhaps I ought to get this pretty important Con Law issue correct.”  Maybe this one is for keeps…   
    I see this as a clear case of prosecutor and Judge malpractice.  We have a legal standard, and this is pretty elementary stuff…  Pretty tired of big government just steamrolling the little people without meaningful recourse.  

  14. Zachary D Spilman says:

    It’s not unethical to be wrong.

  15. DCGoneGalt says:

    It may not be unethical but it sure smells like a sackful of farts.

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

    I disagree.  On rehearing, the AV will be able to testify about all of it because it was all part of one “transaction,” so there’s no prohibition on her testifying about the allegations Hill was acquitted of.  However, based on the Court’s language about the Government only being able to use uncharged misconduct and/or offenses the accused was convicted of, I think the Government is prohibited from invoking MRE 413 for the two sexual assaults Hill was found not guilty of committing.  This is a rehearing, the conduct at issue was “charged,” and the only reason it can’t be recharged is because he was found not guilty.  Hill is entitled to more than a presumption of innocence–he was found innocent.  I don’t think any MJ wants to risk the ROT by instructing panel members “you can consider the offenses of which Hill was found not guilty as propensity to commit the charged sexual assault.  Even though he was found not guilty, I’m telling you there’s enough to say he did commit the sexual assaults by a preponderance of the evidence.”  Can you imagine how taxing that would be on the brain?  And we’re a bunch of trained lawyers.
    What would really be interesting, if there’s a rehearing, is how the defense will use the acquittals, if they are brought up.  What do the acquittals say about the AV’s credibility?  Can the defense argue that because she wasn’t believed on the other 2 events that she is not believable on this event?  Can the defense argue “propensity for innocence,” because the accused was found not guilty of the other 2 events, therefore he is not guilty of the recharged offense?
    I think CAAF outright saying, “it seems obvious MRE 413 can’t be used to show charged misconduct shows propensity to commit the charged misconduct” qualifies as a “smackdown.”

  17. Zachary D Spilman says:

    For issues with use of the acquitted offenses during any rehearing, see United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page).

  18. Concerned Defender says:

    It’s not unethical to be wrong.

    Well, yes, as a matter of fact it can and often is unethical to be wrong where there is an affirmative duty to be right.  “Ignorance is no defense” and all that…   I mean this is simple Con Law 101 stuff.  The Judge has an affirmative duty to know and apply the law.  Heck, the defense counsel raised the objection so it’s not like everyone just missed this issue.  The Judge should have recognized this and gotten the right answer.  
    And while sometimes being wrong may be an innocent mistake, this is akin to a surgeon cutting off the wrong foot despite the protest of the nurse telling him it’s the wrong foot.  To suggest the surgeon is fit to practice medicine is indeed absurd.  He would face malpractice and loss of credentials and his medical license in all likelihood. 
    Here, in lay terms, the government was arguing that the accused is more likely to be guilty of crime A because they also charged him with crime B; stated otherwise, you’re accused of a crime and the evidence of your guilt is another accusation!  That is staggeringly wrong, and simple to answer in the respect that no, it doesn’t work that way per the Constitution, BoR, and fundamental fairness/equity.  Scary that we are just a few votes (CAAF adults) away from effectively Communist China, where you are accused and convicted based on accusation.  
    The only way a Judge or Judges get to the answer that this is somehow okay is those with an agenda.  Note that this was also a sex assault case, which illuminates the likely reasons behind the abysmal Judgement.  I stand by my statement these folks have no business making adult decisions if this elementary concept is lost on them.  I hope that their state bars are notified of this and they have to answer some tough questions – let them understand what it feels like to be under the microscope (deservingly so). 

  19. Concerned Defender says:

    It is also noteworthy, in support of this agenda UCI driven nonsense that 3 YEARS ago the Article 32 Investigating Officer recommended AGAINST prosecuting this case due to the accuser’s testimony was “contradictory and the DNA evidence was inconclusive.”  So, now we are sending men to Court with garbage cases on contradictory allegations and no DNA??  The case just stinks from start to finish and all in between…. I’m glad the adults at CAAF ruled as they did.  It really is too bad the SJAs and TCs and trial court Judges don’t have access to all these garbage cases that CAAF et. al. are overturning… 

  20. k fischer says:

    I’m still surprised that CAAF did not find the error harmless BARD.  I don’t know about bar complaints, but I do think there are some cases that should result in an investigation to determine how they got referred, but not based on the facts contained in this opinion.  This case seems pretty simple.  Girl gets wasted at party, is placed in bed, pukes twice, remembers guy in white sweatpants was sexually assaulting her, and the accused was the only one wearing white sweatpants.  If the defense was consent, then that is a tough row to hoe in showing prosecutorial overreaching.  If it was SODDI, then I get a little more indignant, but not much if the allege Vic was pretty solid, although it sounds like she wasn’t.  She obviously can’t handle her liquor.

  21. stewie says:

    No issues with this opinion, except to note that it’s hard to find a real meaningful difference between this and uncharged misconduct that isn’t a prior conviction. Odds are the stuff on the charge sheet is as often got more evidence for it then uncharged misconduct as not. Again, agree with the decision, not against it, but 413 and 414 to me would be more logically consistent with this decision if they only applied to prior convictions.

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

    Reading comments from the July 30, 2015 post on United States v. Bass, on the MRE 413 issue.  I nailed that one, wow!
    If this keeps up, I foresee CAAF coming out with an opinion that does away with the presumption of military judges knowing and following the law.

  23. mclovin says:

    For something that’s apparently so obvious and so easy to spot that a 1L could do it, sadly this issue doesn’t appear to have been raised all that often. Before we start calling for bar complaints against prosecutors for making the argument, maybe those of us in the defense community should look in the mirror and ask why we weren’t raising this issue in every single case where it arose.

  24. The Silver Fox says:

    Just spit-balling here, but what does this do to charged evidence also brought in to prove a different purpose?  That is, under an “exception” to 404(b) (think MIMIC).  Don’t you have to prove that conduct by a preponderance burden (first) as well?  Discuss.

  25. The Silver Fox says:

    Second question:  Would the result be different if the members had to find the accused guilty beyond a reasonable doubt of one sex offense before using that offense as evidence of propensity to commit other sex offenses?  In other words, what if 413’s burden in charged cases is BRD instead of preponderance?

  26. Bill Cassara says:

    SF: I honestly don’t think many members know the difference between the two standards.  I have a case on appeal where the members told the DC they thought it was a really close case.  Well, if it is a really close case, the guy gets acquitted, right?  Nah. 

  27. The Silver Fox says:

    Well, that’s a broad (and anecdotal) criticism of the justice system writ large, not the issue here.  My questions remain. 

  28. Concerned Defender says:

    Not to mention it would plainly violate the “spillover” instruction.  Uncharged misconduct, or other charged misconduct, or conduct even for which he is convicted – suddenly makes the other charged conduct “more likely than not” …. seems like an endless slippery slope can-of-worms here.  

  29. Zachary D Spilman says:

    Two answers for you, The Silver Fox.

    First, note that CAAF’s decision is in two parts: first analyzing the Mil. R. Evid., and then analyzing the instruction. So, with respect to allowing a finding of propensity to commit a charged offenses from a different charged offense only after the propensity-generating charged offense is proven beyond a reasonable doubt (thereby – maybe – fixing the instructional issue), the first part of CAAF’s decision prohibits this:

    it is impermissible to utilize M.R.E. 413 to show that charged conduct demonstrates an accused’s propensity to commit the charged conduct.

    Slip op. at 5. Significantly, CAAF based this conclusion on both the plain language of the rule and principles of statutory interpretation.

    Second, the use of charged offenses for other, non-propensity purposes (404(b)) is similarly problematic, and caselaw almost uniformly refers to uncharged misconduct in the 404(b) context. Unfortunately, I see a lot of nonsensical invocations of 404(b) by prosecutors, in particular in cases where the non-propensity basis is not in issue. See, e.g., United States v. Thompson, 63 M.J. 228, 231 (C.A.A.F. 2006) (“Even though M.R.E. 404(b) is a rule of inclusion, the evidence must be relevant to a fact in issue other than an accused’s character or predisposition to commit the charged offenses.). See also United States v. Diaz, 59 M.J. 79, 95 (C.A.A.F. 2003) (“Simply stated, the prosecution cannot introduce uncharged misconduct to rebut a defense that was never raised or presented by the defense. Such evidentiary bootstrapping is not permitted.”).

    And, of course, a rule of inclusion (404(b)) can’t operate to include evidence that’s already included. Or, as Judge Ryan put it in this case:

    Charged misconduct is already admissible at trial under M.R.E. 401 and 402, and it is not subject to exclusion under M.R.E. 404(b).

    Slip op. at 7. 

  30. Concerned Defender says:

    Well, I stand by my statements.  It’s evident that amateur hour by the TCs, SJAs, and trial Judges and even ACCA will continue until and unless the wrongly accused and convicted start hitting them back where it matters.  Directly related, we just watched Marlyn Mosby of Baltimore DA notoriety drag 3 officers through the prosecutoral mud and the Judge there said, in the most recent acquittal, “the evidence just wasn’t there.”  Ouch.  
    Same thing here.  THREE YEARS and untold hundreds of thousands of dollars wasted ago, an Investigating Officer recommended non-preferral since the “victim-witness” story was essentially baloney and there was no DNA evidence.  That is a “grand jury” no bill.  Better have your ducks in a row, in my view, to proceed and proceed with extreme caution.  By the way, this point was so important that the CAAF listed it in their ruling – again – OUCH.  
    I really hope every single SJA and trial Judge reads the words of this opinion and CAAF page and takes it to professional heart.  When you are casually making these charging and judicial decisions, YOUR license is going to be on the line.  

  31. JameSON says:

    In the Army, this tactic was pushed via TCAP and the SVPs.  TC’s were just following along and SJAs are not in the weeds that much.  I’ve heard that TCAP thinks this case was wrongly decided.

  32. Philip Cave says:

    Let’s talk ethics for a moment, as the topic seems to have infected the thread.  If, My Liege, I am using the phrase correctly, let’s not jump the shark. 
    1.  We as defense counsel frequently challenge a statute or rule, or seek to argue a particular interpretation in a manner favorable to our case.  This is entirely ethical.  We do this more with new rules or judicial interpretations.  As an example, for about a year now I have been challenging Talkington as being wrongly decided, with a 10 page memorandum explaining why I think it’s wrong.  This is entirely ethical even though the decision seems set in stone.  See the RPC, but first let’s remember this.

    A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.

    Now to be a little more focused.

    A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

    Rule 3.1, ABA Model Rules (each Service basically follows the ABA Model Rules).  Why are the rules different for a trial counsel or military judge (yes MJ’s have different RPC but that’s irrelevant on this point)?  The rules aren’t different for TC’s IMHO.
    2. When MRE 413 was first imposed it was a relatively novel issue.  You could read the robust discussions within the Rules Advisory Committee but there is nothing to answer the Hills question. [1]  So, the first trial counsel to advance the (I’ll call it) the Hills theory were in my view acting ethically.  Wrongly, but certainly ethically.  The same for the first judges.  They were presented a novel issue, they had arguments from both sides, and unfortunately came down on the wrong side.  But that’s not unethical (unless you have evidence otherwise).  The same for the CCA’s from all three Services that got it wrong.  Wrong, but not unethical. 
    3. Once you have the CCA decide an issue, there is nothing unethical for future TC’s or military judges following those appellate decisions.  (That’s similar to a lower appellate court response to CAAF decisions they don’t like or think is wrong.  see generally, Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983); United States v. Sills, 57 M.J. 606, 607 (A.F. Ct. Crim. App. 2002).)  Following the CCA was especially appropriate as CAAF had yet to act.  TC’s and military judges might later feel better in light of CAAF’s early denial of a petition on the issue.  (Although we know that a denial of a petition or certiorari is not to be interpreted as a decision on the merits of the issue.  See United States v. Carver, 260 U.S. 482 (1923).)  Thus, even if there is some queezy argument that the initial TC’s and military judges were acting unethically, their decision makings are affirmed by the CCA–a ratification.
    4. The CCA’s were presented with a novel issue, and they decided it in favor of the government.  (Although keep in mind ACCA got the instructional issue right in Williams.)  They were biased?  Well OK, they were.  But that’s a function of the appellate process in federal courts and each of the 50 states and other jurisdictions.  There is an in built required institutional bias to preserve convictions.  I believe that may be written somewhere in UCMJ art. 59.  If there is evidence that the judge was biased for reasons other than institutional, let’s have it.
    5. In my view, the import of Rule 3.1 applies equally to what the TC’s and MJ’s did with the Hills issue.  They made a  

    a good faith argument for an extension, . . . of existing law.

    That they got it so wrong is certainly a question but not one of ethics.

    6. I’m sure an ethics professor can find a way to make the ethics questions here more lively, but for today Heisenberg rules.
    [1] The federal RAC is a good source for understanding the MRE.  Pity JSC doesn’t do something similar.  And a pity that CAAF is still unavailable to the public.

  33. Concerned Defender says:

    Phil Cave, thank you for the dissection and lively discussion.  My intent isn’t to derail the discussion; in fact this IS the real crux of the matter.  
    I respectfully disagree that any TC or SJA, or any reasonable impartial judge, could find as these folks did.  The MJ has a far greater responsibility by the way to uphold the law and on its face the MJ violated multiple elementary due process protections by deliberately allowing this.  It was a motion in advance so there was no surprise on the MJ and he had ample time to weigh the issue.
    How can one argue or read the law to the panel that an accused is innocent until proven guilty, cannot be deprived of life, liberty, property, etc. etc. etc. protections, in one breath, and then say you can consider the charges against the accused as evidence of his guilt!?  I cannot agree or conceive that is in any professional good faith or an harmless error or minor mistake.  If a TC, SJA, or MJ can’t grasp this simple concept  it’s time to put down their law practice.  
    Combine this with what appears to be a really weak case from the start, factually, with the IO’s recommendations to not proceed, and this is the type of case that I rail about time and again.  Basically, the government gets a garbage case they can’t even convince a layperson (or even another JAG) of the merits in a highly favorable forum of “some evidence of a crime,” they proceed regardless, and they have to finagle and twist – I’ll say unethically – to hem up their arguments for guilt.  I’ve practiced before plenty of government friendly MJs who did not merit wearing their title and have been flabbergasted at their absurd agenda driven rulings from time to time; felt as though I was fighting the TC and the Court.  In my mind, reading this case, it is clear what happened here.  Apparently I’m not alone as CAAF thankfully righted this wrong with a tongue-in-cheek smackdown. 
    Let’s assume for a moment that the complaining witness, as stated by the IO, did in fact materially change her testimony.  The Trial Counsel and SVP would have known this and keyed into it, particularly when raised by the IO.  So, at that point, these government lawyers would still put her on the stand, KNOWING she would be LYING (or at least materially changing her story).  That is unethical.  Plain and simple.  Clear as day.  No dispute.   A lawyer CANNOT put a client or witness on the stand if that person is believed to be lying.  Let’s also talk about frivolous complaints.  When an IO comes back with a no bill, at some point the TC/SVP must put to bed whether this is personal and frivolous, or if this has merit.  I would tend to say if you cannot convince a IO in a highly favorable “some evidence” forum, you are treading on “frivolous complaint” territory.  Better be VERY sure of your case and not pull stunts like we see in Hill. 
    Let’s not forget the big picture.  A man PRESUMED INNOCENT was wrongly charged on garbage evidence, wrongly convicted and sent to prison and suffered irreparable harm to his life, liberty, and property on very very bad lawyering by multiple government lawyers (TC, SVP, SJA, MJ) and affirmed by extraordinarily bad lawyering (ACCA Judges).  The only way to clean this garbage up is through disbarment and grievances.  Let’s not forget these are Public Servants, accountable to the People.  They are not above the law, as they often act.  They are Professionals with Professional licenses, and wield extraordinary power.  All to often, in fact daily, we read these garbage cases that waste taxpayer money, imprison innocent people, and are fixed (if at all) only on multiple layers of costly appeals.  WE, the People, have the right to demand more of these Public Servant Professionals and Licensed Lawyers.  One such way is the grievance and disbarment process, available to those with standing.  I’m not name calling.  I’m not out-of-bounds to demand accountability – or at least an investigation.  After-all, the wrongly accused have been put through far worse.
    I’ll remind you that seeking complaints, grievances, and disbarment against overstepping and overzealous prosecutors is not unusual.  The Duke Lacross Prosecutor was disbarred.

  34. stewie says:

    So you think that following a unanimous holding from all three military service courts is “overstepping and overzealous?”
    Why? Because ultimately a higher court disagreed? If this case were sent to the Supremes (obviously it won’t but this is a hypo) and then came down on the side of the government, would is cease to be overstepping and overzealous? If the CAAF had ruled differently?
    So you propose that we file complaints, grievances, and disbarment based solely on whether or not an appellate court rules one way or another?
    You’re are so over the top it’s hard to tell if you are serious, or someone who’s trying a long, committed improvisational character.

  35. The Silver Fox says:

    CD is the Donald Trump of the comments sections. 

  36. Concerned Defender says:

    Yep, bring out the personal attacks when ya got nothing else.  And btw calling me the “Trump” of comments is a compliment.  Finally an individual that will hold corrupt government officials accountable and tell it like it is, and has a real plan for success, and an actual track record for success, unlike our some of our recent Presidents, soon to be our next POTUS to fix the mess we are in.  I digress. 
    It is interesting in looking through the various briefs it’s either not there, or I missed it, that the ART 32 IO found insufficient evidence.  Puzzling why if this is the case, this issue wasn’t raised by the appellant team?  Perhaps it’s not as impactful, but I would argue it may be.  It is interesting that CAAF did apparently dig into the record and sua sponte raise the issue, and I would suggest it’s a smackdown of their view of the ineptitute of lower Court Judges. “The Article 32, UCMJ, 10 U.S.C. § 832 (2012), investigating officer recommended against pursuing a court-martial against Appellant. She found SPC PV’s testimony to be contradictory and noted that the DNA evidence was inconclusive. Nevertheless, the case proceeded to court-martial.”   Well, oops.  Hard to reconcile that with the ACCA and lower Court totally contradictory decision on this point.
    ACCA totally dropped the ball on pg 5, finding the trial judge was correct in his decision on the topic of admissibility, stating in part:
    “3. In conducting a [Mil. R. Evid] 403 analysis applying the Wright factors, the Court finds as follows: (a) Strength of Proof. The Government has presented solid evidence of the alleged sexual acts. At trial, the Government will be offering the testimony of the alleged victim, SPC [PV]. Her 10 January 2013 sworn statement describes in detail the alleged sexual assaults. She describes the alleged sexual assaults in detail again, in 40 pages of testimony, at the Article 32 hearing held on 18 April 2013.”  Well, um, oops. 
    Then at page 12, the Court continues:
    “… we conclude the military judge implicitly reached the Huddleston conclusion because when assessing the strength of the evidence under Mil. R. Evid. 403, the judge concluded that the government “presented solid evidence of the alleged sexual acts” and would be offering the testimony of SPC PV who had already described the sexual assaults in detail in a sworn CID statement and forty pages of Article 32 testimony.”   Um.  Oops again. 
    A GCM will require an ART 32, so it’s fairly obvious that the case went to a 32.  I read more into it than that – meaning “hey dimwits, why are you wasting our time?”  So, again, not sure how all these folks can miss the fact that the IO recommended  as s/he did.  
    The basis, an entire prong of the trial Judge’s decision, was based on a total falsehood if we are to believe the IO.  How that falsehood came to be, and perpetuate, is an enigma.  I will note that ACCA conveniently omitted the trial Defense teams cited objection to the 413 evidence in their brief.  Can we say “one sided?”  Um.  Hmmm… that’s a head scratcher.  We know the Defense did object, from the CAAF decision.  I don’t see the exact reasons for the objection, but we can all make pretty educated guesses.  
    Something very important is very amiss here.  How can a trial Judge, and ACCA Judges, all miss the fact that the accuser apparently lied, and the use as a basis for justification an assertion that implies or expressly states she was totally credible?  And this doesn’t even get into the ethical stuff regarding the TC and SVP putting the witness on the stand?
    Folks who can’t see this, just don’t want to see or believe it.  Yet here it is in black and white.  In the record for all to see.  

  37. stewie says:

    No, we actually have everything else. Phil gave you everything else. Instead of reading it, realizing he is right, and saying, yep, ok, good stuff I may have overreacted, you doubled-down.  Now you are tripling down. That you are a Trumpite is not remotely surprising.

  38. Concerned Defender says:

    I find it troubling that a number of lawyers here see no problem with putting a witness on the stand who has been alleged to have materially contradicted herself during an oath-taken preliminary hearing.  Equally troubling that nobody else seems to think a MJ or other Judges should be held accountable for not only also ignoring this point, but sweeping it under the rug and finding exactly the opposite – that she was credible and consistent at all times.
    Oh well, par for the course in today’s agenda driven sex assault prosecutions.  Just glad I’m no longer subjected to the growingly oppressive UCMJ where logic and reasons has left the station in favor of emotion and UCI (that thing everyone knows exists but nobody wants to admit). 
    At the end of the day, CAAF fixed this one-sided embarrassment of a case.  I can only hope that the defense team drops some grievances on these crackerjack box lawyers involved. 

  39. Concerned Defender says:

    In support of my “outrageous” above statements, apparently I’m not alone in wanting some accountability from over zealous prosecutors (and Judges).  I urge SJAs, Trial Counsel, and SVPs to pay close attention to this …. this isn’t a game you’re playing.
    “A Georgetown law professor has filed disbarment charges against Marilyn Mosby for her corrupt prosecution of six Baltimore cops in the death of career criminal, Freddie Gray.  There have now been 3 trials and Mosby hasn’t come close to winning one yet and has even been excoriated for withholding exculpatory evidence.”
    Among the allegations are political motivations, lack of evidence, deceit, fraud, no probable cause, misrepresenting facts, etc.
    Tying this back into Hills, the appearance is pretty bad given the IO statements contradicting the actions of the SJA/TC/SVP putting the witness on the stand, and the MJ ruling and ACCA’s citation of it.  See also the other sex assault cases overturned for a host of mostly lack of sufficient evidence to factually or legally support a conviction, if I were a TC, SVP, or SJA and even MJ, I’d pay careful attention to this if I valued my job and law license.  Stop bringing these cases in bad faith, and making bad faith arguments.