On Tuesday CAAF granted review in the following Army case:

No. 17-0231/AR. U.S. v. Torrence A. Robinson. CCA 20140785. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues raised by Appellant:

I. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO ADMIT CONSTITUTIONALLY REQUIRED EVIDENCE UNDER MILITARY RULE OF EVIDENCE 412(b)(1)(C).

II. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR THE SPECIFICATION OF CHARGE I, WHICH INVOLVED AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20.

And the following issue specified by the Court:

III. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SPC VM WAS TOO INTOXICATED TO CONSENT TO A SEXUAL ACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (meaning the case was summarily affirmed).

Mil. R. Evid. 412 is the military’s rape shield rule, and it prohibits admission of evidence “offered to prove that any alleged victim engaged in other sexual behavior” (Mil. R. Evid. 412(a)(1)) and evidence “offered to prove any alleged victim’s sexual predisposition” (Mil. R. Evid. 412(a)(2)). The rule does, however, contain exceptions, including for:

[E]vidence the exclusion of which would violate the constitutional rights of the accused.

Mil. R. Evid. 412(b)(1)(C). This exception is the one at issue in this case and it is notable for three reasons. First, there isn’t a bright-line where exclusion of evidence violates an accused’s constitutional rights. Second, the exception is still actually in the rule (while a similar exception in Mil. R. Evid. 513 was ordered removed by Congress in the FY15 NDAA and then was removed by Executive Order 13696). Finally, the exception conflicts with the rule’s procedural requirements in a way that CAAF found constitutionally-problematic in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), but has not been fixed.

CAAF also docketed a writ-appeal in a Navy-Marine Corps case (no opinion is available on the CCA’s website):

No. 17-0315/AF [sic]. Jeremy E. Hassett v. United States. CCA 201600118. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

9 Responses to “CAAF to review the constitutionally required exception to Mil. R. Evid. 412”

  1. Former DC says:

    Its entirely possible that I am still asleep, but I seem to remember from the first day of law school that rules must give way to the Constitution. So, written exception or not, if the Constitution requires admission of the evidence, the rule is no impediment. 

  2. Bionic Barry Dylan says:

    True…but then we are also living in a world where the Accused is often presumed guilty once accused of a sexual assault offense – I seem to remember that not being quite in line with the Constitution either.  And when that comes from the top, it contaminates the entire process.
     
    Remember this little gem from Wright: “According to Col Bialke [GCMCA SJA], Lt Gen Harding [former AFTJAG] stated the following:  the failure to refer the case to trial would place the Air Force in a difficult position with Congress; absent a “smoking gun”, victims are to be believed and their cases referred to trial…”

  3. DCGoneGalt says:

    Bionic Barry:  Please include a trigger warning before mentioning the former AF TJAGs name.

  4. Isaac Kennen says:

     
    In United States v. Gaddis, 70 M.J. 248, 256 (2011) CAAF already spoke about the application of M.R.E. 412:
     
     

    M.R.E. 412 cannot limit the introduction of evidence required by the Constitution — although the text of the rule seems to permit such a limitation. And the [suggestion] that balancing constitutionally required evidence against the privacy interest of the victim before admitting it is necessary to further the purpose of the rule . . . is simply wrong. The purposes of [a rule of privilege] are served by the rule itself[.] If after application of M.R.E. 403 factors the military judge determines that the probative value of the proffered evidence outweighs the danger of unfair prejudice, it is admissible no matter how embarrassing it might be to the alleged victim.

     
    Why wouldn’t that be controlling?

  5. Wannabe Kenobe says:

    Isaac – it would be.  I assume the G will disagree with Issue I’s premise.  At least I hope we don’t yet live in a world where the G will argue that it’s okay to exclude Constitutionally required evidence…

  6. PMclaughlin says:

    I was present on the committee that was ordered to apply the civil (never criminal at the time, which I pointed out)  physiotherapist privilege to the military justice system.  Since the UCMJ is a ball-of-yarn toy for Congress and the then-DoD IG mandated the privilege, the JSC added the last protective note per good lawyering, i.e. unless Constitutionally required). Let’s give those good thinkers credit.  Can Congress really delete that?
     
    I also argued against the then-goofy spouse communication privilege, but that’s in the rear -view mirror.

  7. k fischer says:

    I just read the supplement to the petition to grant relief filed by the appellant.  If the facts are true and the issue was raised to ACCA, then I am really perplexed how the conviction could be affirmed summarily, which it was.  In fact, this is the second time a case was summarily affirmed, which really raises a factual sufficiency issue in my mind.  I forget which case it was in the past few months that CAAF granted review, but one of the comments was that the case should have been “summarily reversed.”
     
    Defense counsel filed a motion under 412, seeking admission because the evidence went to the heart of appellant’s mistake of fact defense:
     

    In his ruling, the military judge excluded most of the requested evidence. (App. Ex. VI (sealed)). As part of his findings of fact, the military judge found “[i]n his statement to CID, as indicated in the AIR, [SPC Robinson] … stated that [SPC VM] had flirted with him on multiple occasions prior to the incident and that they had talked about having sex on numerous occasions as well.” (App. Ex. VI (sealed)).

    *6 In excluding this evidence, the military judge stated “[t]he defense has failed to establish by preponderance of the evidence that the following evidence is admissible under Mil. R. Evid. 412(b)(1)(B).” (App. Ex. VI (sealed)). The excluded evidence included “[e]vidence of hugging, flirting, etc.” between SPC Robinson and SPC VM from two third-party witnesses, SPC Bready and SPC Marshall. (App. Ex. VI (sealed)).

    The military judge further ruled “discussions between [SPC Robinson] and [SPC VM] that they talked about having sex on numerous occasions is inadmissible unless the discussions can be linked to the morning of the alleged incident” and “[n]one of the evidence presented relates to specific instances of sexual behavior relevant to prove consent of [SPC VM] on 27 July 2013.” (App. Ex. VI (sealed)). Notably, while the military judge outlined the requirements for Mil. R. Evid. 412(b)(1)(C) in his ruling, he did not analyze its applicability. (App. Ex. VI (sealed)).

    UNITED STATES, Appellee, v. Specialist (E-4) Torrence A. ROBINSON, United States Army, Appellant., 2017 WL 914588 (U.S. Armed Forces), 5-6

    Robinson even took the stand, according to the appellant’s defense counsel recitation of the facts:
     

    Specialist Robinson’s testimony

    At trial, SPC Robinson testified about horse playing at the party with SPC VM. (R. at 498). This horse playing involved tapping each other’s arms and legs, and SPC Robinson thought SPC VM was “politely flirting, having a good time.” (R. at 498-99). During the party, SPC Robinson had four or five red Solo cups containing a mixture of vodka, rum, and fruit juices. (R. at 542).

    Later, SPC Robinson saw SPC VM run down the stairs. (R. at 499-500). In assessing her level of intoxication at the party, SPC Robinson told CID he thought she was a “seven” on a scale of 1 to 10. (R. at 538). Specialist Robinson was going to accompany several people to check on SPC VM at her barracks room, but there was not enough space in the car for SPC Robinson. (R. at 503-04). No one *9 told SPC Robinson whether they had located SPC VM, so he left to go check on her. (R. at 504). Specialist Robinson stopped by his house on the way to the barracks, telling his wife he was going to check on a drunk Soldier. (R. at 530).
     

    When he arrived at SPC VM’s room, SPC Robinson knocked, no one answered, and he then “checked the door to see if it was opened and it was.” (R. at 507). When he entered the room, SPC VM was still awake. (R. at 507). Once SPC Robinson saw she was okay, he went to leave and told her to call him if she needed anything. (R. at 508). However, as SPC Robinson turned to leave, SPC VM reached up, grabbed his wrist, pulled him towards her, and asked him to stay. (R. at 509).
     

    Specialist Robinson ended up in the bed with SPC VM, who was naked under the blanket. (R. at 510). She wrapped her arms around his neck, they began kissing, and she pulled his shirt over his head. (R. at 510). She then grabbed at his belt to get him to take it off. (R. at 510-11). Specialist Robinson interpreted this conduct to indicate SPC VM wanted to have sex with him. (R. at 511). They wound up having sexual intercourse in her bed multiple times and in multiple positions. (R. at 511-15). At one point, SPC Robinson was positioned behind SPC VM, who turned back to look at him, bit her pillow, and reached back to grab her own buttocks. (R. at 515). Based on his overall observations, SPC Robinson did not believe SPC VM was too drunk to consent. (R. at 538-41).

    *10 Specialist Natal’s testimony

    The only evidence not excluded by the military judge’s Mil. R. Evid. 412 ruling related to SPC Natal’s perception that SPC VM was “trying to get with” SPC Robinson. (App. Ex. VI (sealed)). However, the military judge explained in his ruling this evidence was only admissible if it was linked to the night of the party. (App. Ex. VI (sealed)).

    At trial, SPC Natal testified this conduct occurred “before the party.” (R. at 377). The military judge subsequently ruled this evidence to be inadmissible and gave a curative instruction to the panel. (R. at 382). The military judge even told the panel members “anything prior to that night that occurred you are to disregard.” (R. at 382) (emphasis added).

    UNITED STATES, Appellee, v. Specialist (E-4) Torrence A. ROBINSON, United States Army, Appellant., 2017 WL 914588 (U.S. Armed Forces), 8-10

     
    If all that is true, then the flirting would have to be admissible.  Without evidence of the flirting and the discussion of sex, then how in the world could the TDS counsel argue that it was reasonable for Robinson to think that the AV was consenting to sex?
     
     

  8. stewie says:

    Anything prior to that night you have to disregard??
     
    What?
     
    So if they’d had consensual sex 15 nights in a row prior, you’d have to disregard that as to mistake of fact as to consent?
    I get that you’d have to caveat that with saying that one is not required to consent on the 16th occasion just because they consented on the first 15 and if you believe she did not consent this time then it is rape (I’m short-handing here, I know consent as an element is long gone), but this is clear mistake of fact evidence that should be allowed, particularly since it clearly seems “tied” to the night of the incident unless I’m missing something??

  9. k fischer says:

    Stewie,
     
    No, you’re not missing a thing, unless the appellate counsel is soup sandwiched, which I don’t think so.  What I’m missing is how this could be summarily affirmed.
     
    I had a case that fit pretty well with the facts of this case down at GMTO.  Accused had previous sexual relationship with AV who gets married while on leave.  Comes back as a married woman.  They study together and make out.  I can’t remember if he knew she got married or not.  Then, she calls him on the night of her birthday where she proceeds to go out and get hammered.  He doesn’t go out with them, but sees she called him on his missed calls.  So, he goes over to her hooch, walks in like he always did in the past, goes up, stairs to her room where she is in bed.  She tells him to get into bed with her.  They start intercoursing.  She tells him to stop bc she thinks she might be sick.  He stops, talks a bit with her, then leaves.  Next day, she feels like something happened.  Goes to a sharp briefing, then reports that she was raped.  Dismissed at the 32 back when AV’s had to testify because of mistake of fact.
     
    If you don’t get in the previous flirting and sex talk, then it makes it look like the accused went over to a drunk girl’s house and took advantage of her. 
     
    Instead of:
     
    Why did you think it was okay to stick your penis in her that night?  Well, (1) she grabbed my wrist and pulled me into the bed where she was lying naked, and (2) she told me a week before how it was too bad I was married because she would F*** the S*** out of me, which she proceeded to do multiple times in multiple positions. 
     
    You are left with this:
     
    Why did you think it was okay to stick your penis in her that night?  Well, she grabbed my wrist and pulled me into the bed where she was lying naked.
     
    Makes it sound like he’s lying and that she was unconscious.