A three-judge panel faced a difficult situation in United States v. Wiredu, No. 201600243 (N-M. Ct. Crim. App. Aug. 17, 2017) (link to slip op.). Personnel Specialist Second Class (E-5) Wiredu was convicted of sexual assault based on an encounter with a woman he had just met. But Wiredu was also charged with sexual offenses involving two other, otherwise-unrelated, women. At trial the prosecution was allowed to use (over a defense objection) the three allegations as evidence of Wiredu’s propensity to commit the allegations, and the military judge so instructed the members (also over objection). The members then convicted Wiredu of assaulting one of the three alleged victims.
The prosecution’s tactic is prohibited by Mil. R. Evid. 413 and the military judge’s instructions denied Wiredu due process. See United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016). So the CCA finds error.
Nevertheless, the CCA concludes that Wiredu is guilty. Writing for the panel Judge Rugh explains that:
After weighing all the evidence in the record of trial and recognizing that we did not see or hear the witnesses, we are convinced of the appellant’s guilt beyond reasonable doubt.
Slip op. at 2.
But that’s not the end of the opinion.
Because the error implicates a constitutional protection, reversal is required unless the error is harmless beyond a reasonable doubt (meaning that there must be no reasonable probability that the error might have contributed to the conviction). Put differently, even though the panel is personally convinced of Wiredu’s guilt beyond a reasonable doubt, it still has to answer the altogether different question of whether it is similarly convinced that the members’ decision was not influenced by the improper propensity evidence.
It’s not so convinced.
the military judge’s decision to permit evidence of the charged offenses involving SB and Petty Officer KR to be used as propensity evidence in the case involving JW was error.
Instructional error with constitutional implications is prejudicial unless it is harmless beyond a reasonable doubt. United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). More specifically, we must evaluate whether the instructional error contributed to the members’ decision to convict. “An error is not harmless beyond a reasonable doubt when ‘there is a reasonable possibility that the [error] complained of might have contributed to the conviction.’” Hills, 75 M.J. at 357 (quoting United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (alteration in original)).
Assessing this error for prejudice, we recognize that the members’ adherence to the erroneous instruction was not so pernicious as to cause them to find the appellant guilty of the alleged offenses against SB and Petty Officer KR. We also acknowledge the independent evidence supporting the sole, remaining finding of guilt, including JW’s text messages and demeanor after the assault, and the results of the sexual assault forensic examination and DNA analysis. However, these factors must be weighed against the absence of other witnesses to the crime or admissions by the appellant, as well as the prominent use of the propensity instruction by the trial counsel at the conclusion of his closing argument. As a result, the instruction may have assisted the members in reaching their guilty verdict. Based on the whole record, this case more closely resembles the facts in United States v. Ellis, No. 201500163, 2016 CCA LEXIS 516 (N-M. Ct. Crim. App. 30 Aug 2016), than it does United States v. Luna, No. 201500423, 2017 CCA LEXIS 314 (N-M. Ct. Crim. App. 9 May 2017), and we are thus left with reasonable doubt about the effect of the offending instruction on the members.
Slip op. at 5 (emphases added).
The panel reverses the conviction and authorizes a rehearing.
The brilliance of this opinion is not that the panel finds a Hills error that is not harmless. The error is obvious and any decision on harmlessness depends on the facts of the case (and we only have a brief summary of them). Rather, the brilliance is Judge Rugh’s juxtaposition of the panel’s personal certainty of Wiredu’s guilt with its uncertainty of how the members might have reached the same conclusion. Because the Hills error requires reversal, the panel’s factual sufficiency finding is totally superfluous except to show that the reversal is the product of diligent application of the correct legal standard.
Put differently, rather than change the law to fit its opinion of the case, Judge Rugh makes it clear that the panel reverses the conviction, even though it believes Wiredu is guilty, because that’s what the law requires.