Argument Preview: Rebutting evidence of good service with an unfavorable memorandum written two weeks before trial, in United States v. Jerkins
CAAF will hear oral argument in the Army case of United States v. Jerkins, No. 17-0203/AR (CAAFlog case page), on Tuesday, November 28, 2017, at 9:30 a.m.
The appellant is an Army major (O-4) who was convicted of assault consumated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. The members sentenced him to confinement for six months and a dismissal.
The defense called multiple witnesses during the sentencing phase of the court-martial to testify about Jerkins prior good service, including three colonels and two retired major generals. In rebuttal the prosecution offered into evidence a General Officer Memorandum of Reprimand (GOMOR) that was issued approximately two weeks before trial.
A GOMOR is an administrative reprimand that is ostensibly non-punitive and may be issued summarily by certain officials (reprimands are also authorized punishments under the UCMJ, but that requires formal proceedings). See Army Regulation 600-37 (available here). A GOMOR may – but need not necessarily – be filed in a soldier’s Official Military Personnel File, which is the permanent record of the soldier’s service. Under R.C.M. 1001(b)(2) the prosecution may then “obtain and introduce from the personnel records of the accused evidence of the . . . past military efficiency, conduct, performance, and history of the accused.”
The GOMOR issued to Jerkins reprimanded him for alleged fraternization with an enlisted soldier; specifically, Jerkins’ wife (at the time of trial), who was an active duty specialist (E-4) when they met and married, and who was voluntarily discharged before she gave birth to their child 11 months after the marriage. The GOMOR concluded:
You have failed to live up to the Army values and you have betrayed our trust. I have serious doubts regarding your ability for continued service in the United States Army . . .
App. Br. at 4.
The defense objected to admission of the GOMOR, the military judge overruled the objection, and the Army CCA issued an opinion that did not address the issue. CAAF then granted review to determine:
Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.
Jerkins’ brief attacks the admission of the GOMOR in two ways. First, Jerkins argues that the GOMOR was not admissible as a personnel record under R.C.M. 1001(b)(2) because the issuing authority had not yet taken final action on the reprimand. Second, Jerkins argues that the probative value of the GOMOR was substantially outweighed by the danger of unfair prejudice.
Jerkins’ first argument focuses on the fact that Army Regulation (AR) 600-37 requires that the recipient of a GOMOR receive an opportunity to rebut the document before a final determination is made to file the letter in official records. Jerkins did not receive that opportunity before the letter was introduced during the sentencing phase of the court-martial. But the Army Government Appellate Division’s response asserts that it doesn’t matter, and that any such document – regardless of status – may be admitted at a court-martial as a personnel record of the accused:
R.C.M. 1001(b)(2), on the other hand, refers to “personnel records of the accused” and does not use the “official personnel file” language from AR 600-37. This omission, combined with the disjunctive “or maintained in accordance with departmental regulations” indicates the President did not intend for R.C.M. 1001(b)(2) to be read as narrowly as the Appellant suggests. Even if the Appellant’s GOMOR was later torn up and never filed, at the time of the court-martial, it was a record of the accused.
Gov’t Div. Br. at 10-11. This argument suggests an exception that CAAF might find would swallow the rule, because if personnel records of the accused includes things never actually filed in the official military personnel file, then it could also include records not known to the accused (such as a superior’s private notes). Furthermore, because official military personnel file is a statutory term (see 10 U.S.C. §§ 615, 14107) it’s reasonable to read R.C.M. 1001(b)(2) as referring to that file.
Assuming that the GOMOR was admissible under R.C.M. 1001(b)(2) as a personnel record, CAAF will then consider Jerkins’ second argument: that it nevertheless should have been excluded as unfairly prejudicial. Jerkins’ brief asserts that the GOMOR should not have been admitted because:
it was a direct statement made by the commanding general of MAJ Jerkins and [of] at least one panel member addressing an additional allegation of misconduct.
App. Br. at 13. He also argues that it “was both misleading and inaccurate,” App. Br. at 15, and that it implicated his wife in misconduct while she was “an important defense witness,” App. Br. at 17.
Insofar as these assertions are accurate, they seem to be the kind of factual questions that are properly addressed with contradictory evidence and (for the reporting relationship between the GOMOR’s author and a member) voir dire. If, for example, the GOMOR really was inaccurate, then the defense should have been able to demonstrate its inaccuracy and render it meaningless (or perhaps even use it to Jerkins’ benefit by showing that his commanding general is irrationally biased against him). Maybe this would have required a distracting trial-within-a-trial, but the briefs don’t address that.
The Government Division’s brief also highlights that the GOMOR was used in rebuttal:
[T]he probative value of the GOMOR as rebuttal was high because the Appellant chose to build his sentencing case on testimony of his positive duty performance, military character, and rehabilitative potential. (JA 60-70, 73-86). While the GOMOR standing alone was not highly probative, it became probative in the context of Appellant’s sentencing case. In particular, the Appellant chose to put testimonial evidence of Appellant’s rehabilitative potential before the panel.
Gov’t Div. Br. at 11. Evidence of rehabilitative potential is a special kind of sentencing evidence governed by its own rule: R.C.M. 1001(b)(5). It’s debatable whether the GOMOR meets the requirements of that rule. But I think it’s undeniable that the GOMOR is the opinion of the general who wrote it, and I also suspect CAAF will question whether Jerkins’ defense opened the door to that opinion when they presented the favorable opinions of so many other witnesses.