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.

38 Responses to “A breath of fresh air from the NMCCA”

  1. K fischer says:

    I can sort of understand a woman texting her friend to come get her when she is scared af rather than dialing 911.  But I can’t imagine that when the friend says she can’t and that she is calling the police, the vic says “No stop.” I.e. Don’t call the police.  
     
    And KR lets him go down on her but when his penis touches her leg he has to register as a sex offender for the rest of his life?  Good thing the Government charged that one.  Then he bites the clothes off a third charged Vic?  I replay that rape scenario in my minds eye and it sounds like the steamroller death scene in Austin Powers.
     
    So is it possible that one woman reported, then CID got his cell phone and informed all the females who answered the randomly called numbers on his cell phone history that they were investigating him for rape wherein they made a false report?
     
    There is something more to this case.

  2. Duderino says:

    This is air, but not fresh air.  It’s more like a fart into the sails, nudging the ship back towards the general direction of common sense. Scraps at the table of fairness when full fairness is due.  
    This hostility will not stand man. Walter didn’t watch his buddies die face down in the mud so that some girl who owes money all over town could ruin a dudes life with only 3 out of 5 for a conviction man.
    MJ = Quasi Justice 
    People who raise their right hand to defend the constitution should enjoy equal or greater protections provided by it, not less. That’s the elephant in the room and the rest are are all trivialities. 

  3. lrglaw says:

    Duderino- totally agree with all sentiments expressed in your post. Military Justice is still apsirational rather than actual 25 years after I left active duty as a JAG. No criminal investigators for defense counsel, no single track careers for criminal defense JAGS, who spend an entire career as DCs like their civilian Public Defender counterparts, the CCAs are a bad joke compared to their civilian state counterparts or even worse to the Federal Appellate Circuit Courts. I would staff all JAG offices with a core of Civilian Defense Counsels -GS Types supplemented by AD JAGS.

  4. A Survivor says:

    This decision makes no sense.  The trial court found him guilty.  Check.  The appellate court is convinced of his guilt BRD.  Check.  Conviction overturned.  WTF? 

  5. lrglaw says:

    “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.”
    Isn’t it WILDLY INAPPROPRIATE for the CCA to state such an opinion as to the accused Guilt or Innocence, especially since this case is going to be re-tried? I wonder what a Federal District Court or Federal Court of Appeals would say about such a statement uttered by Military Criminal Appellate Court.

  6. Duderino says:

    A Survivor
    I empathize with your position, however, it is important to remember that law, the institution of justice, and the providence provided by these institutions are based on principles that surpass all individual cases tried before them. Integrative complexity is the term in psychology that refers to a persons ability to take into account multiple of points of view and to conceptualy integrate the differing view points together into logical solutions to the bigger picture. 
    The entire ideal of our justice system is based largely on two concepts: 1 adversarial arguments, each side having the absolute right to equally argue its position. And 2, that its is more morally imperative that an innocent citizen not be falsely imprisoned than for a guilty one to go to free.
    Your posistion is, I assume, that it’s frustrating to see a guilty person not be punished. But what I ask of you is how many innocent people being imprisoned is to high of a price to ensure this man is punished?   Secondly, what impact would it have in a society if they weren’t confident that they would not be imprisonned if they were in fact innocent?  
     
    Justice is is not perfect and it never will be, so we are left with the question – what’s the best way to handle it.  The court of appeals cannot just simply do whatever they, although it seems they do sometimes. They are controlled by the law and their duty is to make judgements based on the current law. Here, the prosecution and the trial judge went outside what has been decided is outside of the law, and the law dictates that they must set aside the current conviction and retry the case within the law.
     
     
    we live in an imperfect world, one in which we will all inevitably be wronged. You are not alone, I assure you. But I hope that you will find solace in the fact that it’s important to avoid innocent people being convicted at the price of some guilty people going free, for that would just create more victims. Advocates of MJ reform, in the name of fighting for victims, have created several more victims, and to me that is wrong. Imagine yourself in a committee with the power to make change to the law. In that committee there are victims of false convictions. What solution do you think people from your posistion and theirs could come up with?  …. thinking about that should make you feel better about this, because it’s bigger than this one defendant.
     

  7. A Random JAG says:

    I disagree.  Reaching factual insufficiency is needless throat-clearing if you’re going to overturn the case based on Hills.  Why decide an issue you don’t need to decide?  

  8. Vulture says:

    I am not sure if it is OK to say that the Courts are impotent when they can jerk themselves off so eloquently.  Completely agree with A Random JAG

  9. stewie says:

    Concur with the idea that the court absolutely should not have weighed in on factual sufficiency and declaring the accused “guilty beyond a reasonable doubt” if they were going to overturn based on the panel possibly improperly applying evidence. What happens if he’s convicted again and members of this same panel (or quite frankly another panel on the same court) hear a defense brief on factual sufficiency? They’ve already said good to go BRD.
     
    It was needless and unnecessary. One of the first rules of crim law is “don’t get creative” (unless you are the defense). They should have kept it simple.

  10. A Survivor says:

    Duderino,
    Please take that long, self-masturbatory post and shove it up your k fissure.  You don’t have a clue what will make me or anyone else feel better…jackoff.

  11. Concerned Defender says:

    @ A Survivor – clearly you’re extremely emotional about this topic but Duderino is correct.  Imprisoning an innocent person of rape/sex assault is the equivalent of the state victimizing that person.  So it’s on par with being a rape victim, but by the state.  Surely you can agree that is not a good solution.  Further, prosecuting innocent people on poor evidence steals resources from real victims.  And I’ll add that since sex crime cases are so emotionally charged and rarely involve clear evidence of guilt, we must be VERY logical and careful and remove emotion from the conviction or sentencing of same.  Pilling on more allegations as propensity is extremely dangerous as well.  I hope you can use logic and set aside emotion in dealing with these cases, because emotion clouds judgment and makes society no better than criminals if it’s emotionally convicting and imprison innocent people.

  12. jagaf says:

    Look, I get it. Hills is the law and NMCCA wants to make a point; it’s an important point I guess, though all these cases came at a time when the law was simply different. But, okay. A breath of fresh air, though? Really? Come on, man. I can respect the system upholding rule of law when, as here, it’s hard. But don’t ask me feel like it’s a good thing that a rapist gets this windfall and his victim is now faced with doing it all again; it isn’t.

  13. Zachary D Spilman says:

    But don’t ask me feel like it’s a good thing that a rapist gets this windfall and his victim is now faced with doing it all again; it isn’t.

    I think that a depraved way of viewing a justice system that exists to protect the rights of an accused, not make an alleged victim whole. 

    Judge Rugh’s opinion in this case is a breath of fresh air precisely because it avoids the messy emotional judgments in your windfall and doing it all again comments, and simply applies the law. As courts are supposed to do. 

  14. Alfonso Decimo says:

    I agree the opinion is legally correct and that the appellate panel made a poor choice to unnecessarily address factual sufficiency. The errors were at the trial-level by an over-zealous prosecutor and an inattentive trial judge. The system administrators should direct more resources towards the selection and training of officers for these roles.

  15. k fischer says:

    Alfonso X, 
     
    Oh wise one.  Please allow my disagreement as I am but a simple minded poster, and by no means am as wise as you.  
     
    I believe it to be unfair to trial judges and prosecutors too accuse them of malfeasance when there was a panel instruction in the MJ’s benchbook that permitted this propensity.  I cannot say that I, harkening back to the time when I was a simple minded prosecutor, would have had the foresight to have foregone requesting such an instruction, or denying that such an instruction should be read, if it was in the Benchbook.
     
    But, I’m with you and everyone else.  Why did the NMCCA make a factual sufficiency determination when they reversed under Hills?
     
    And, A Survivor, I see a lot of people are apparently infuriating you while they are really going out of their way to be nice to you because they probably think you are “A Survivor.”  I could be wrong, but I have a hunch that you aren’t a Survivor.
     
    Many complaining witnesses who testify against men who are convicted of rape at Courts-martial or are thrown out of College with little or no due process are not Survivors.  And, by your angry tone and trite name calling, you sound like a female who did not get the conviction she wanted.  But, you might not be. You might have gotten the conviction you wanted, but people don’t believe you. Or maybe, your life was truly in danger during your ordeal and somehow you managed to survive by giving in or you fought off your attacker who intended to kill you, and I’m wrong about you.  
     
    Nonetheless, I think that “Survivor” indicates someone who was lucky to survive after the allegedly nonconsensual intercourse, not the girl who got wasted and blacked out, not realizing all the things she did with PFC Snuffy that he believed were consensual, then woke up the next morning and said that she was sexually assaulted.  Or the cadet who kind of mentally “checks out” rather than sticks her thumb in a cadet’s eye until he gets off of her when he doesn’t take “No” for an answer the first time or screams “Help! I’m being raped” when the Sponsor is in the next room.  Or the NCO who is so scared af that she dissuades her friend from calling the cops to prevent being raped.  That’s not “surviving.” But, much like the term “sexual assault” has been broadened to include unwanted looks, I think the term “Survivor” might have been broadened to the point where it could also be meaningless.  
     
    But, you keep calling yourself that, and I’m sure you will appreciate me responding to your posts with the same acerbic tone you afford others who are treating you like a delicate snowflake.  And before you go off and play the victim because I don’t ascribe to the “start by believing” mantra that I am commanded to by the Ministry of Truth, let’s not forget that you intentionally misspelled my name inferring that I am a fissure, probably of the anal variety.  Quite clever, I must admit.  So, I’m sure you won’t mind me treating you with the same unfiltered respect that you treat me and anyone who disagrees with you.  

  16. jagaf says:

    @ZS, I didn’t criticize the court for busting the conviction; I said I could respect it. I would be curious to see what AFCCA would have done with the case given their Sudds decision and the fact that the members did not convict on the other offenses, but again, I don’t question NMCCA’s application of Hills. As others have said here though, the explicit determination of guilt beyond a reasonable doubt seems a questionable choice here. For example, assuming the Navy does attempt another trial, how does the prior determination of guilt beyond a reasonable doubt by a superior court impact matters if the defense decides to go JA knowing the MJ is aware of the prior finding? I guess the can voir dire it, but it seems a problematic choice to make that finding while simultaneously authorizing a rehearing.
    Again though, my only original point was this: where the trial court and the appellate court are convinced beyond a reasonable doubt that Wiredu is guilty of sexual assault, this result IS a windfall as that term is defined (an unexpected, unearned, or sudden gain or advantage) and not something that I see as worthy of celebration. The right choice is still not always a good one because sometimes there are no good choices.

  17. Zachary D Spilman says:

    this result IS a windfall as that term is defined (an unexpected, unearned, or sudden gain or advantage)

    Except that correction of a legal error is never unearned. Rather, it was the prosecution that received a windfall at trial (the error), and so must now prove its harmlessness.

    That is, so long as you agree with the panel’s conclusion that the law requires reversal unless it can be certain that the error did not contribute to the members’ decision to convict – which is a wholly different thing from whether the panel itself believes the prosecution met its burden. 

    The CCA must, of course, “recogniz[e] that the trial court saw and heard the witnesses.” Art. 66(c). That provision is usually used as a reason to affirm the findings, but it cuts both ways. In this case the CCA finds that a sterile record proves the offense, but it acknowledges that the members – who saw and heard the witnesses – might have reached a different conclusion in the absence of the erroneous propensity evidence and argument. 

    Varsity level stuff.

  18. No Justice says:

    What a breath of fresh air.  The military justice system seems to finally be coming around and applying justice to both sides of the fence with sexual assault one small step at a time.  How many of our service men have been falsely accused of what the military has deemed as “sexual assault” and then tried on ridiculous accusations with no evidence what so ever, only to pile on a plethora of bogus charges to try and get a conviction? Where is the justice in that? I’m not saying that is the case in every SA case but in the last 4 years it damn near has been, just to show Congress that they are “fighting” sexual assault.  Finally we start to see some evidence of the realization of how corrupt the military justice system and SA is.  
    Unfortunately I was on the losing end of this topic.  An E-7 with a perfect career and not a blemish on my record, neither personal nor military. Never doing anything wrong to ANYONE to include never being in a first fight. A girl I had consensual intercourse with on a TDY decided she would save face with her coworkers and tell them she did not consent to me dancing with her at the party the same night we had consensual sex in her room. Investigated for SA because her hand grazed my “penis” area over top of my pants for 1 second… wow ….  What came next? 6 bogus charges to include a hug on a female friend of mine who had hugged me 50 times on the TDY but somehow AFOSI got her to think this one hug was”different” and my “accuser” denying the intercourse so she didn’t get in trouble.  It’s a damn joke and everyone in the courtroom knew it except the Jury who could use the charges and evidence (in this case all the evidence was only the accusation itself and not ONE witness to anything except us leaving the party together AFTER THE ALLEGED SEXUAL ASSAULT).  Hell the girl even testified about the dancing that she was only NOT consenting in her mind.  HA …. but the prosecutor used propensity to overcome the mistaken consent defense :( It was so bad the Jury did not discharge me and after my conviction I was allowed to go back to work at my base.  Unfortunately I had to register as a sex offender with my state and my entire life was ruined even with a Honorable Discharge.  Because of the “easy” sentencing I was not entitled to an appeal so I petitioned the AF and guess what… I won. 
    Now I’m not allowed to argue Factual Sufficiency on my appeal because of some F’d up rules in place to keep people from righting wrongs done to them by the military who get a “light” sentencing.  But I do get one argument ….. Hills and Hukill.  So when you are someone in my shoes who had his entire life destroyed because a girl he trusted wanted to save face and not be humiliated by her peers because she drank a little bit and made a choice to enjoy an evening with a man that was NOT her partner, then yes this is a damn breath of fresh air!! Knowing I will have a chance at life again and that the military is taken this ruling of law serious is the only thing that keeps me going day to day until my appeal is WON.  It’s the only reason I have not given up because I am a true SURVIVOR of a corrupt witch hunt on what the Military calls “sexual assault” 

  19. jagaf says:

    Oh, ZS. As always, my hat is off in humble appreciation and recognition of your varsity-level understanding of anything and everything military justice. You win. Having his conviction overturned despite two courts determining his guilt beyond a reasonable doubt could never be considered a windfall for a poor guy whose only fault seems to have the unfortunate propensity to get himself accused of sexual assault. But, yes, I concede your point that 413 did potentially (despite the fact of the acquittal for the other two charges after receiving the now-erroneous instructions) result in a windfall to the gov’t at trial and, in all seriousness, I do appreciate that the system worked in that the law was applied even here when it is hard. I just won’t be drinking Wiredu’s health at my favorite local watering hole tonight. 

  20. Alfonso Decimo says:

    KFISHER – First of all, you are hilarious and I really enjoy your posts. Secondly, you overlooked the red-flag opportunity the judge and the prosecutor squandered. The defense objected to the government’s motion for the propensity evidence and the benchbook instruction. If there were no defense objection, I can understand relying on the benchbook, but there was an objection (una banderita roja). Now that the expense and ordeal of a new trial is the obvious result of the wrong legal choice at that juncture, it’s appropriate to identify those who made it. Hopefully, they are kicking themselves in the rear and staying alert in the future.

  21. stewie says:

    jagaf, so your argument is we should be sad at “windfalls” for guilty accused?
    If by sad you mean I wish the prosecution was better at their job, ok, sure. If by sad you mean, I’m sad the accused got a windfall then no, not at all.
     
    I’m HAPPY when the courts force the government to abide by the law. Extremely happy! I don’t drink, but I might pop open a Pibb Xtra (it’s not your ordinary Mr. Pibb!) in celebration.
     
    And the windfall is what? A rehearing, where the accused is highly likely to be convicted all over again? Boy, some windfall.

  22. k fischer says:

    AD,
     
    In the words of the wisest man livin’ in Reseda whose got a sanded wooden deck runnin’ through his backyard: Ah, you pretty okay, too.

  23. Vulture says:

    Air is about 20 percent life giving oxygen and 80 percent inert nitrogen with some trace compounds.  Windfall?  Maybe.  Fresh air – OK.  But yep, those ratios just about put it in perspective.

  24. NutCutter says:

    K Fischer,
    I completely agree with what you’re saying about sexual assault victims only having themselves to blame.  Talk about fresh air.  Nice to hear someone who will tell like it is.  I’m sure you would agree that short skirts, revealing blouses, and alcohol have caused more rapes than rapists ever will.  Thank you for putting a survivor in her place.

  25. K fischer says:

    NC,
     
    I’ve always thought questions about revealing blouses and short skirts to be a red herring that the third wavers like to dredge up.  Perhaps it worked in the 50’s, but an attorney would have to be a moron to make that kind of argument.  Alcohol abuse, on the other hand, has caused quite a few equally inebriated men to have the unequally applied to them and result in their conviction.
     
    And whether a victim has herself somewhat to blame is really going to be based on the individual cases facts.  Survivors never have themselves to blame.  As far as putting her in her place, am I the only one who thinks Survivor is a misused term too many times?

  26. NutCutter says:

    K Fischer, I think your defense colored glasses shade every sex assault case you see as one where the woman is at fault, caused the situation, should have fought back, etc.  In other words, to a hammer, everything looks like a nail…

  27. k fischer says:

    NutCutter, 
     
    You know, A Survivor accused me of having defense colored glasses in another post.  It’s funny that you use the same term.  It’s a typical tactic for advocates to use different personas to create an echo chamber to make it look like there are more numbers who agree because obviously if more people feel the same way about a position, then it must be right.
     
    Nonetheless, your premise is not true.  I’ve seen plenty of sex assault cases where the woman is not at fault in any way.  I can recall one particular case where a woman did not fight back at all and was truly a rape survivor because we learned that the guy was a serial rapist and the next week beat the crap out of a woman who fought back.  But, take for instance, US v. Lt Leonhardt talked about here.  I have a hard time saying that the complaining witness in that case is “a survivor” because had she not “mentally checked out” and actually throat punched him or called for help from the Sponsor who was in the home, then I think the attempts at intercourse would have stopped.  I really don’t think he would have killed her.
     
    My thoughts on victim blaming is like this:  If I went to a strip club with $10k in fifty dollar bills, got blacked out wasted, and held up $1k to every stripper in the club that walked by who took the money out of my hands, are they guilty of theft because I was too drunk to consent to giving them my money?  And if they are guilty of theft, then am I blameless in the matter?  I don’t think I would take offense to someone telling me, “Hey bromigo, you probably shouldn’t go to strip clubs and get so drunk with so much money.  Those poor strippers have criminal records now because you tempted them with all that cash.  They have to register as a thief for the rest of their lives and can’t live within 500 feet of a bank or ATM because of you.”  
     
    Or what about the homeless lady who asks me for money out in front of the restaurant in Downtown Columbus?  I told her no, but she kept on asking me and I kind of just mentally checked out and gave her my wallet where she took out $20.00.  I guess I shouldn’t feel any sympathy for her because she should have stopped trying to get my money by me simply saying no.  I shouldn’t be forced to walk away and go to another restaurant, or push her off of me or threaten to call the cops when she gets too close. A witness heard me saying, “Please buy yourself something to eat” but the Defense should not be able to get that in because it is victim blaming.  I gave her money two times after that, but that has no bearing on that one time where she took money out of my wallet after I said no.
     
    Would I sound stupid if I said, “You know, one “No” should be required to prevent a homeless person from asking me to give them money, and strippers shouldn’t take money from drunk guys.  Otherwise, they should be convicted of a crime with life long consequences and nobody should be able to question the victim’s actions.”  Sex assault cases analogous to these are what I am talking about.
     
    I’m not talking about the case where I am puking or clearly passed out and a stripper rolls me over and takes all the money out of my wallet.  Or, where I am asleep at the train station in Budapest and gypsies steal my wallet, my underwear, and my socks.  I would be a viictim who should not be blamed.  Although, I don’t know if I would call me a Survivor.  I would reserve the term Survivor for those people who are robbed with a gun and give up their wallet so they don’t get shot, or who fight back and prevent their wallet from being stolen during an armed robbery or who was being robbed by a bad guy with a gun, but a good guy with a gun shot the bad guy with a gun.  Those are Survivors to me.
     
    And, I think your victim colored glasses shade every sex assault allegation you see as true and beyond reproach requiring drastic action such as castration without a trial.  In other words, to a Nut Cutter, everything with a penis and a scrotum is guilty and should be snipped just to be safe.

  28. DCGoneGalt says:

    Nut Cutter:  I’m pretty sure k fischer is immune to the high-pitched scream POD People emit to signal a non-believer amongst them.   
     
    POD People Explanation  (see 1993 Body Snatchers summary)
     
     

  29. A True Defender says:

    K fischer,
    Keep up the good fight, brother.  Your analogies are spot on…do you use those in your briefs?  If not, you should.

  30. k fischer says:

    ATD,
     
    No, I prefer to express my analogies during closing arguments.

  31. Keep Diggin' says:

    kf,
    “I guess I shouldn’t feel any sympathy for her because she should have stopped trying to get my money by me simply saying no.”
    This kind of turns “no means no” on its head, don’t it???

  32. Learned Counsel says:

    Mr. Fischer,
    Have you considered writing an article on this topic?  I think your blunt, yet insightful, views would be a welcomed fresh perspective in a scholarly journal.

  33. Concerned Defender says:

    If you think wrongful sex assault prosecutions and convicting innocent men in the military is not an epidemic, you are either not a practioner, clueless, or your enjoy watching innocent men accused of sex assault go to prison to right some twisted overall social justice.  
    Sadly, No Justice’s experience is the norm.   I bet I averaged 1 bullshit sex assault defense case every quarter in my JAG defense career, and saw a number of them when I was a TC.  The corruption is baked into the cake.  “Confessions” are forced, “Allegations,” are manufactured with leading questions.  Exonerating evidence is fully ignored by CID agents and eager Trial Counsel who drank too much Hildabrandt cool-aid.  
    My first big case, I co-counseled an young PFC.  Long story short, he had concensual sex at a party with Girl #2 while his buddy and girl #2 were also in the room having consensual sex, in some group sex situation.  Everyone knew it was consensual from the prior events leading up to this moment.  Even his infuriated former sex partner and girl #1.  Immediately afterwards, on a surreptitiously recorded cell phone audio, girl #2 and #3 admitted it was consensual, repeatedly, over a 20 minute dialogue where girl #1 was furious.  Later that night or the next day, the girls were burning and girl #1 convinced weaker #2 she was raped.  Our defense was air tight.  We had audio tape with girls #2 and #3 immediately afterward saying in their own words it was consensual.  We had witnesses beforehand talking about the party.  We had the co-accused who was in the room.  We had adamant denials from the accused.  We had girl #3 who was in the room who said it was all consensual.  The prosecution trotted out some fraudulent propensity witness who wove this absurd tail that had no business in the court room, and after  her testimony she gave this shouted scream as she ran from the courtroom – a performance worthy of an Oscar.  Feeling quite confident we expected an acquittal.  Verdict.  Guilty, Rape, 5 years prison, BCD.   Now, imagine for a moment, this is YOUR life.  A woman you clearly had consensual sex with, as evidenced by her OWN words and actions before, during and after… and as evidenced by two other witnesses IN THE ROOM at the time – claims rape and you go to PRISON for 5 years, get a BCD, and it ruins your life…  Oh, and the co-accused.  Different panel, and no propensity evidence.  Effectively acquitted, I think he was convicted of something minor and got Article 15 type punishments and a conviction of course. 
    That was my experience that made me realize just how broken the entire system is when that type of evidence results in a conviction.  
    Now, when folks ask me why I left the service, I tend to give them a wide range of answers which are all true.  But to people who understand this issue, this is the NUMBER 1 reason I got out, will never serve again under such insanity, and will never recommend a male subject himself to the draconian UCMJ and its application.  
    I’ve never raped or sexually assaulted anyone.  However when you have your eyes opened to the absurd applications of the UCMJ, that trivial fact is irrelevant.  It just doesn’t matter that you didn’t assault anyone – the only relevant fact is if a woman says you did.   No amount of denials, trying to persuade the MJ shop you didn’t etc. will make any difference. You are probably headed for a career ending separation or Court Martial, and odds are high you will be convicted regardless of what you do or say or don’t say.
    For a male, the risks of being accused of sexual assault (regardless of whether you actually did it) are many times greater than dying or being injured in combat.  Think about that.  
    In OIF and OEF combined, there were combined 20,100 wounded OEF, 2400 deaths OEF, 32,000 wounded OIF, 4411 deaths OIF.  Total 6811 dead and 52,100 wounded.  Difficult to average since OEF has been 16 years and OIF was only 8 years.  
    Sex assaults reported a ten year period, from 2004 (earliest report I can quickly find) – 2014 is 30256 reports of sex assault in the DoD.   That averages about 3,000 reports annually in modern times.  
    Without spending too much time in averages and weeds, you can easily see that a male Soldier in the modern era has about the same odds of being combat injured as having a sex assault allegation against him, and a the least risk of dying by far.  He’s about 10 times more likely to have a sex assault allegation as dying in combat….  think about that for a moment.  And with almost mandatory NJP, chapter, or Court Martial, his life is going to likely be ruined over a likely false allegation. 
    I tend to not believe that Joe is out there sexually assaulting women as much as it’s claimed.  Call me a cynic.  It’s  just not happening.  
     
     

  34. Concerned Defender says:

    Once again I am in agreement with KF.  
    Great analogies.  I can see it now.
    Mr. Smith.  You drove yourself to the strip club, correct?
    Yes.
    And you voluntarily got $10,000 in singles from the ATM?
    Yes.
    Knowing that every stripper would want them, right?
    Yes.
    And then  you knowingly showed wads of cash to them, to get attention, isn’t that true?
    Yes.
    According to your receipts, you ordered and drank several alcoholic drinks over 3 hours, correct?
    I did. 
    Enough to get you buzzed, light headed, and drunk correct?
    Yes.
    You testified that during the course of the night, strippers were taking your money you had in your hand, correct?
    They were.
    So you went there with the intention of drinking?
    Yes.
    And experiencing a strip club?
    Yes.
    And handing out money to strippers?
    Yes. 
    No further questions. 

  35. DCGoneGalt says:

    Please, stewie, double space your paragraphs.  
     
     

  36. No Justice says:

    Concerned Defender,
    well said! I know at least 3 people personally who resigned from the military due to my case alone.  I’m willing to bet the every penny I have left since my bogus conviction that 70% of all SA conviction in the past 3 years alone were done so unethically and using propensity.  Not to mention the trial by peers who have so much pressure to actually convict whether right or wrong just because they don’t want to be the ones who didn’t uphold the sexual assault witch hunt. The simple fact you can convict with no physical evidence in a SA case in the military is flabbergasting.  The shit wouldn’t fly in a civilian court room, in fact my case was LAUGHED at by 5 civilian lawyers shaking their heads in disbelief it even went to trial (special court martial mind you).
     
    K Fischer…. I’m going to hire you as my publicist when my case makes the media where I live lol.  I love your views and interpretations as they are realistic and void the political correctness that everyone seems to want to buy into! We needs more people like you with a voice to make people realize the truths about this joke of a thing they call sexual assault prosecutions in the military!!

  37. k fischer says:

    I think your blunt, yet insightful, views would be a welcomed fresh perspective in a scholarly journal.
     

    I disagree with your assertion, Learned Counsel, that my blunt views would be welcomed.  Needed, perhaps, and definitely fresh in that they are full of logic and accountability, but the only journal that might publish an article of mine on this topic would be run by Larry Flynt, and his publication is a far cry from what I would call scholarly.
     
    Wait. A. Second.  I think Learned Counsel and True Defender are being sarcastic!
     
    But, there is often an unintended truth in sarcasm.  I think that my bluntness, lack of filter, and extraordinary depth of knowledge of military sexual assault cases could be useful in training Soldiers how to stay away from false and true allegations of sexual assault.  You know, kind of like a lessons learned from previous opinions.  
     
    Take for instance, US v. Janowiak
     

    The typewritten statement indicates that the appellee touched SAF with his penis on her inner thigh in an effort to try to get her sexually aroused. The later handwritten statement indicates that SAF was asleep when he tried to initiate sexual intercourse, and she was also asleep when the appellee had attempted to place two of his fingers into her vagina.
     
    U.S. v. Janowiak, NMCCA 201300246, 2013 WL 4570913, at *2 (Navy-Marine Crim. App. Aug. 29, 2013)
     

    Teaching Point: Baseball Analogy.  When you have sex, think of the Baseball bases analogy: 1st=kissing; 2nd=breasts/chest; 3d=vagina/penis; and home run=intercourse.  Henry Aaron hit 755 home runs with the Braves, and he had to touch all 3,020 bases.  He couldn’t just hit his dinger and step on home plate without rounding the bases in numerical order.  Certainly that would save time, but it would also increase his risk of being thrown out.  Sex is just like baseball and being thrown out is like being accused of sexual assault.  If your first move is to go to third, you’re probably going to get thrown out.  You need to round the bases and let her be your base coach.  If she tells you to hold at first, then you stay on first.  At some point, she might change her mind and want you to advance to second.  If she really wants you to go to second, then she will show you second.  Heck, she might pull second base out of the ground and rub second in your face.  Until she does either one, you should stay firmly planted at first to prevent being thrown out. Remember: It’s always better to be replaced with a pinch runner, than to be thrown out. There will be plenty of other teams willing to pick you up when you are a free agent.  Even when you are certain in your mind that it is clear to advance from third to home, it’s wise to stop and check with your base coach before scoring.  Chances are that if you stop and look up at your base coach, she will exclaim breathlessly, “Why are you stopping????”  Tell her you were thinking about advancing to home plate and ask her if she thinks it would be okay.  And, it is highly advisable if she crossed home plate with you like a cowgirl at some point during your stretch to home.
     
     
    Remember the bases analogy, listen to your base coach, and your risk of being thrown out will decrease immensely.
     
     
    Also, if you live in a one party consent state, it might be wise to carry a voice recorder in your pocket when you step up to the plate just in case you get thrown out because your base coach is crazy.  The front office might want to cut you from the team, but if you can show them that your base coach told you to advance to the next base, then she will probably be traded because we all know that crazy base coaches rarely get cut.  And, don’t listen to a drunk base coach. She may tell you to advance to the next base, but if you get thrown out, the front office might say that it’s your fault because you knew she was drunk.
     
     
    I think Hospitalman Janowiak and every other 19 year old E-3 convicted of sexual assault could have benefited from that kind of blunt training.  
     
     
    Oh look!  US v. Mitchell is out!  Time to move on to some real work.

  38. Concerned Defender says:

    KF – while quite creative and logical in the real world, in the lala UCMJ land a female implied or even expressly consenting at the time is often moot or ignored by Trial Counsel, MJ, and panel.  You know this.  
    I’ve seen, and I bet you have too, ample cases of either implied or clear express consent through prior, contemporaneous, or post-coital behavior that any rational and sane person would say it consent.   Drinking, touching, kissing, words, advancing, more coitus, holding hands after, dating afterwards, etc.  
    Yet somehow these rape and assault cases pass the laugh test and get prosecuted.  
    Hell, look at Major Erik Buris (google him and be shocked at the injustice).   Normal family man with wife and kids.  Unhappy in marriage, tells his wife he wants a divorce.  Suddenly accusations of assault and child abuse come out of the woodwork.  Short version, 20 years on rape conviction for what I have been informed by very learned and respected counsel was a joke of a case with OBVIOUS lying by the disgruntled wife for purely strategic reasons for custody.  I believe that was the case where the 32 IO reported that the wife was not credible and it should not go to trial.  
    So, I suppose, years of marriage and marital sex with no complaints of rape during that timeframe until the husband serves divorce papers; if that isn’t enough to create consent, I’m not sure what is really??
     
     

Leave a Reply