CAAF will hear oral argument in the Army case of United States v. Williams, No. 17-0285/AR (CAAFlog case page), on Tuesday, January 9, 2018, at 9:30 a.m. The case is before CAAF for the second time and – also for the second time – CAAF will consider the impact of the military judge’s instruction that allowed the members to use one charged sexual offense as evidence of Williams’ propensity to commit another charged sexual offense. Such an instruction was found to be both constitutional error and inconsistent with the military rules of evidence in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016).
CAAF will hear argument on a single issue:
Whether the Army Court of Criminal Appeals erroneously found that the propensity instruction given in this case falls within an exception to the holding in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).
In 2013, Sergeant (E-5) Williams was convicted of the rape of his first wife (Charge I) and the forcible sodomy of his second wife (Charge II), by a general court-martial composed of members with enlisted representation. Before trial his defense counsel filed a motion to preclude the prosecution from using the charged offenses as evidence of Williams’ propensity to commit the charged offenses. “[T]he military judge did not make a specific ruling on the motion.” Gov’t Div. Br. at 9. However the military judge functionally denied the motion by giving the members a fairly standard (at the time) instruction that allowed them to use Charge I (rape of the first wife) as evidence of Williams’ propensity to commit Charge II (forcible sodomy of the second wife).
The military judge’s instruction had a certain logic because propensity must exist at the time of the offense to be relevant. Put differently, evidence that Williams assaulted his second wife wasn’t relevant to show his propensity to assault his first wife, because the second came after the first. The argument that he did it before so he’ll do it again only works in one direction. By instructing the members that they could use the first allegation to prove the second allegation, but not instructing that the second could prove the first, the military judge merely acknowledged this temporal reality.
Nevertheless, it was error, for all the reasons explained by CAAF in Hills. But the Army CCA determined that “this case is an exception to Hills.” United States v. Williams, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.). The CCA reasoned:
Charge I is entirely unaffected by Hills. When deliberating on evidence with regards to the Specification of Charge I, the panel was not allowed to consider propensity. Additionally, with regards to the forcible sodomy specifications contained in Charge II, the only propensity evidence the panel was allowed to consider stemmed from a specification that had been independently proven beyond a reasonable doubt.
Slip op. at 2 (emphasis in original). Next week’s oral argument challenges that determination.
The CCA cited – and Williams’ brief to CAAF discusses – the Supreme Court of California’s decision in People v. Villatoro, 281 P.3d 390 (Cal. 2012). Villatoro involved a California rule of evidence that is similar to Military Rule of Evidence 413, but the trial judge in Villatoro “clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity.” 281 P.3d at 400. That didn’t happen in Williams. Rather, the military judge gave a standard propensity instruction that informed the members that:
Evidence that the accused committed rape on divers occasions alleged in The Specification of Charge I may have no bearing on your deliberations in relation to any of the allegations of forcible sodomy in the Specifications of Charge II unless you first determine by a preponderance of the evidence that is more likely than not that the offenses alleged in The Specification of Charge I occurred. If you determine by a preponderance of the evidence the offenses alleged in The Specification of Charge I occurred, even if you are not convinced beyond a reasonable doubt that the accused is guilty of those offenses, you may nonetheless then consider the evidence of those offenses for its bearing on any matter to which it is relevant in relation to the forcible sodomys alleged in Charge II. You may also consider the evidence of such other acts of sexual assault for its tendency, if any, to show the accused’s propensity or predisposition to engage in sexual assault.
App. Br. at 5 (emphasis added).
The CCA’s opinion embodies the post-hoc rationalization that because the members convicted Williams of the rape charge (Charge I), they must have been convinced beyond a reasonable doubt, and so any use of the rape charge as evidence of propensity to prove the forcible sodomy charge (Charge II) was harmless. The Army Government Appellate Division’s brief defends the CCA’s reasoning with the argument:
Given that the propensity instruction only flowed in a one-way linear direction from Charge I to Charge II, Charge I was proven with evidence independent of all other Charges. It is only logical that the panel must have evaluated Charge I first before determining whether the offenses in Charge II occurred if they considered propensity with regard to Charge II.
Gov’t Div. Br. at 16.
Williams’ brief offers two responses:
First, sewage flowing in one direction is still sewage.
App. Br. at 3. Second,
neither the Army Court decision nor the government brief explains how appellate courts can say, to any degree of certainty, the order in which the panel members deliberated on the charges. Remarkably, rather than conceding that the order of voting is properly and perpetually cloaked in secrecy, the government instead baldly asserts it is “logical that the panel must have evaluated Charge I first.” (Gov’t. Br. at 18) (emphasis added).
App. Br. at 4.
Hills was a two-part decision. CAAF first held that the military rules of evidence (and the analogous federal rules) do not allow charged offenses to be used for propensity purposes, making such use error in any case. Then it held that the standard instructions for such use undermine both the presumption of innocence and the requirement of proof beyond a reasonable doubt.
The Army CCA’s characterization of this case as involving an exception to Hills, and the wording of the granted issue, suggest that next week’s oral argument will focus on the underlying holding of Hills: that the military rules never allow use of charged offenses for propensity purpose, with no exceptions.
Whether the error is nevertheless harmless in this particular case will depend on the facts. See United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017) (CAAFlog case page).
• ACCA decision (first decision / pre-Hills) (75 M.J. 621)
• Blog post: ACCA overturns pesky precedent
• Blog post: CAAF reverses
• ACCA opinion
• Blog post: CAAF grants
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview