CAAF will hear oral argument in the Navy case of United States v. Andrews, No.17-0480/NA (CAAFlog case page), on Wednesday, February 28, 2018, at 9:30 a.m. The court granted review of a single issue:

The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?

Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.

Andrews admitted to the sexual encounter in a pretrial statement to military criminal investigators, however he claimed it was consensual. At trial he raised the defenses of consent and mistake of fact as to consent. Both sides presented evidence relevant to these defenses, but in closing argument the prosecution crossed the line.

Specifically, the Navy-Marine Corps CCA concluded that prosecutorial misconduct occurred during closing arguments when the assistant trial counsel called Andrews a liar, inappropriately mischaracterized Andrews’ statement to law enforcement, asserted that even Andrews’ defense counsel did not believe him, and misstated the law regarding capability to consent. Nevertheless:

while acknowledging that TC’s misconduct was severe, and assuming arguendo that the curative measures taken by the military judge were inadequate, we are “confident that the members convicted the appellant” of having sex with Ms. AB, while he knew or reasonably should have known that she was incapable of consenting, “on the basis of the evidence alone.” Sewell, 76 M.J. at *1415 ( citation and internal quotation marks omitted).

United States v. Andrews, No. 201600208, slip op. at 20 (N.M. Ct. Crim. App. Apr. 27, 2017).

At first look, CAAF’s grant of review appears to be limited to that finding of harmlessness. But the Navy-Marine Corps Appellate Government Division asks CAAF to look beyond it in two ways. First, the Government Division’s brief asserts that “failure to object to improper argument constitutes waiver,” Gov’t Div. Br. at 20, even though the NMCCA explicitly rejected this argument (discussed here), the Army CCA doubts it was right to accept this argument (discussed here), and CAAF will address its in a different case to be argued (by me) next month (grant noted here). Second, the Government Division disagrees with some of the CCA’s conclusions that the prosecution’s arguments were improper.

Nevertheless, in recent decisions CAAF repeatedly affirmed convictions despite conduct by prosecutors that “left much to be desired,” United States v. Short, __ M.J. __, __, slip op. at 5 (C.A.A.F. Jan. 5, 2018) (CAAFlog case page), where it amounted to “gross governmental misconduct,” United States v. Claxton, 76 M.J. 356, 361 (C.A.A.F. 2017) (CAAFlog case page), and even when “the prosecutorial misconduct . . . was sustained and severe.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (CAAFlog case page). That is largely because when reviewing prosecutorial misconduct, CAAF “gauge[s] the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Rodriguez-Rivera, 63 M.J. 372, 378 (C.A.A.F. 2006) (citations omitted).

Andrews’ brief, however, makes personal blameworthiness a significant aspect of this case.

After a lengthy recitation of ostensibly-improper arguments by the assistant trial counsel, and an acknowledgement that the CCA found those arguments to be harmless, Andrews’ brief highlights that:

V. The Judge Advocate General and the Deputy Judge Advocate General praised the assistant trial counsel’s advocacy.

For the ATC’s work on QMSA Andrews’ case and several others, the Judge Advocate General of the Navy and his deputy recognized him as the “Trial Counsel of the Year,” citing his “skillful advocacy [that] resulted in a 100% conviction rate in contested cases.” This award required a nomination from the ATC’s Commanding Officer to the Deputy Judge Advocate General of the Navy. And recipients of a “Superior Performance Award,” like “Trial Counsel of the Year,” typically receive a Navy and Marine Corps Achievement Medal.

App. Br. at 22 (formatting in original). It’s hard to tell which way this cuts. On one hand, CAAF may give greater scrutiny to the conduct of an award-winning prosecutor. But on the other hand, the court may give more deference.

But in the end Andrews’ brief applies the customary test for prejudice in the case of improper argument:

To assess the prejudice of trial counsel’s misconduct, this Court balances three factors: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.”

App. Br. at 25 (quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)).

The Government Division’s brief offers a range of arguments in response. First, the Government Division asserts that:

The lower court erred in finding that Trial Counsel “invented admissions,” and overstated the severity of Trial Counsel’s improper argument, both in terms of raw instances, and in whether it permeated the initial findings argument.

Gov’t Div. Br. at 29. I don’t see any analysis of how the CCA erred, just the conclusory assertion that it did.

Second, the Government Division asserts that:

in closing, Civilian Defense Counsel attacked Trial Counsel’s analogy to contract law, arguing “a drunk person can’t consent to signing a contract are you kidding me is that really where we’re going. It’s clearly not the law . . . .” (J.A. 443.)

Rather than allowing the Military Judge to ameliorate any possible prejudice to Appellant by objecting to this argument, Appellant instead chose to tactically discredit Trial Counsel, and undermine the strength of the United States’ case. Thus any resulting impact on the Members from Appellant’s tactical decision to counter, rather than object to Trial Counsel’s misstatement of the law or disparaging comments is not prejudice “caused by trial counsel’s comments,” and should not be held against the United States. Cf. Sewell, 76 M.J. at 18. Further, by correctly reminding the Members that Trial Counsel’s argument was a misstatement of the law, it further mitigated any impact Trial Counsel’s improper argument may have otherwise had on the Members.

Gov’t Div. Br. at 30. It’s hard to figure out what the Government Division is trying to say here. It seems to blame the defense for not objecting and forcing the military judge to correct the improper argument, but it also argues that the defense cured the impropriety through opposing argument. Lost in all of it, however, is any acknowledgement that it is “as much [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” United States v. Pabelona, 76 M.J. 9, 12 (C.A.A.F. 2017) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

Third, the Government Division asserts that:

The evidence against Appellant was strong. The United States established through witnesses at the party that the Victim was so heavily intoxicated she was unable to follow conversations, and could not walk without assistance. (J.A. 135-37, 146-49, 153, 159, 205, 219.) The evidence established that the Victim vomited just before Appellant decided that “he didn’t care” and had sex with her. (J.A. 491.)

Appellant admitted that he barely knew the Victim and knew she was intoxicated. Guests witnessed the Victim showing no warmth or receptiveness to Appellant’s repeated attempts to talk to her. Appellant admitted that although he was warned repeatedly by Petty Officer K and RW against trying to “hook up” with the Victim, he nonetheless went the room where the Victim slept to see if he could “get lucky.” The evidence demonstrated not only that the Victim was in no state to consent to sexual activity, but also that Appellant knew or should have known her physical state.

Gov’t Div. Br. at 32-33. This is functionally what the CCA concluded and it is the Government Division’s best argument for affirming the convictions. But CAAF will likely wonder why, if the evidence was so strong, the award-winning prosecutor resorted to improper arguments.

Finally, the Government Division argues that:

The fact that the Members acquitted on two of the three [sexual] offenses charged stands as ample testament to the degree to which the Members listened to and applied the instructions of the Military Judge and disregarded any possible improper arguments of counsel.

Gov’t Div. Br. at 35. It’s hard to see how acquittals on 2/3 of the disputed allegations proves the case was strong.

A reply brief from Andrews tackles the Government Division’s waiver argument with the observation that:

to change the law now would undermine public confidence. During the time of QMSA Andrews’ trial and appeal at the lower court, this Court’s precedent was clear: it reviewed improper argument under a plain error standard in the absence of an objection. . . . To shift course now would constitute a stark departure from precedent and deprive QMSA Andrews of appellate review on an issue this Court has repeatedly stated it reviews for plain error.

Reply Br. at 5. Andrews also accuses the Government Division of selectively reading the record:

In arguing that the strength of its case established a lack of prejudice, the Government, in its forty-three page brief, omitted any mention of a central fact: before the sexual intercourse, AB “took her pants off.” And unlike the Government, when this Court evaluates the weight of the evidence, it cannot ignore Prosecution Exhibit 5, which established that after QMSA Andrews asked AB if she wanted to “have sex,” she did more than just vomit. She verbally said “yes” and removed her own pants.

Reply Br. at 7.

While CAAF may have granted review to determine only whether the CCA “g[ave] its imprimatur to the prosecutorial misconduct,” it’s unlikely the parties will focus on just that narrow issue during Wednesday’s oral argument.

Case Links:
NMCCA decision
• Appellant’s brief
• Appellee’s (N.M. App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

38 Responses to “Argument Preview: What to do about an award-winning prosecutor’s improper arguments, in United States v. Andrews”

  1. Isaac Kennen says:

    Andrews’ brief, however, makes personal blameworthiness a significant aspect of this case.
    It’s true that Andrews’ brief makes note of the prosecutor’s personal blamewhorthiness, and that personal blamewhorthiness is not part of the test CAAF applies.But, more importantly, I think Andrews’ brief makes issue of the fact that the prosecutor was officially praised and given an official award for that blameworthy conduct. I think that’s a different issue. I think that’s a relevant.
    To illustrate the reason I think that’s relevant, I suggest that the error of prosecutorial misconduct at trial is similar to the error of police misconduct in searches and seizures. The two errors should be remedied using similar standards. 
    Under Mil. R. Evid. 311, evidence obtained by an illegal search is still admissible unless: 

    exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

    If CAAF were to apply similar logic to prosecutorial misconduct claims:
    1. Likelihood of appreciable deterrence from any adjudged remedy – Given that the government affirmatively praised its prosecutor for the offensive conduct, it is unlikely that a remedy would yield appreciable deterrence. It takes a lot to convince an organization, once it has convinced itself that it is right, that it is actually entirely wrong. I think the fact that the government praised this misconduct may, in a perverse way, actually hurt the accused for this prong of the analysis.
    2.  Cost to the justice system of adjudging a remedy (or of not adjudging a remedy) – Usually this prong is the prong that hurts accused persons seeking to have their rights vindicated. The cost to the system is usually quantified as the risk that the guilty might go free on account of a “technicality.”  In this case, though, the risk to the military justice system is broader, and more fundamental, than the potential freeing of one guilty accused.  I think this prong actually helps Andrews. He could argue that, in light of the fact that the government has actually praised and awarded the offensive conduct in question, the risk of that manner of advocacy metastasizing and infecting other cases is high unless the Court nips it in the bud. The cost of inaction here is equatable to the cost of a doctor’s inaction when their patient has been diagnosed with a treatable form of cancer. If it is not stopped now, it may not be stoppable later.

  2. Bill Cassara says:

    An award for a 100% conviction rate. Because, after all, that’s the goal of a prosecutor right?

  3. TC says:

    Assuming the prosecutor believes the accused is guilty, yes, the goal of a prosecutor is to get a conviction.

  4. Zachary D Spilman says:

    The biggest problem with linking the improper argument to the award is the likelihood that the award has little or nothing to do with the argument, and the strong likelihood that the CCA’s finding of significant prosecutorial misconduct in the argument was surprising to the people involved in granting the award. The CCA did, after all, review for plain error (because the defense made the weakest of objections). It’s likely that few people saw a serious problem in the aftermath of the trial. 

    The better way to look at the award – I think – is as evidence of the prosecutor’s competence and experience. Similar factors were present in United States v. Sewell, 76 M.J. 14 (C.A.A.F. Feb. 1, 2017) (CAAFlog case page), where CAAF named the trial counsel. The opposite was the case in United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), where the court did not name the counsel while remarking that she was “inexperienced, ill prepared, and unsupervised.” 73 M.J. at 160.

    Neither Sewell nor Hornback, however, won any relief. 

  5. Vulture says:

    This is a mine field.  It is true that the CAAF grades the TC’s homework, not the TC.  But looking at the praiseworthiness of a defective performance does involve the receiving an award.  First, he didn’t really get a 100% conviction, rate did he?  As Zach says above, he failed at 2 out of 3.  His conduct was no secret to anyone, and overcharging to get a shotgun conviction isn’t heroism.
    Second, in Sewell CAAF centered its analysis on “The panel’s mixed findings further reassure us that the members weighed the evidence at trial and independently assessed Appellant’s guilt without regard to trial counsel’s arguments.”  In that case the CAAF made it’s position peeking out from behind the Panel box.  There is nothing to that logic but bait and switch spam.
    Last, the high concentration of cases involving improper argument can’t have gone unnoticed.  So, assuming there is something to hope for out of this session, CAAF needs to recognize that the ATC was recognized by the supervisory chain and allowed to pursue this conduct.

  6. K fischer says:

    I can’t wait for the day that a TC argues that I don’t believe my client.

  7. Alfonso Decimo says:

    I like Bill Cassara’s comment. Someone needs to look into the Navy JAG leadership. Now that I am retired almost 4 years, I appreciate the leadership we had about 26 years ago when I was a new JAG. Trial advocacy was all about civility and honor; that was effectively encouraged from the top down. Trial Counsel of the Year. What a terrible top-down message!

  8. Zachary D Spilman says:

    Snowflakes everywhere, Alfonso Decimo, and thin skin abounds. 

  9. Alfonso Decimo says:

    Zack – That’s too cryptic for me, although I remember SECDEF Rumsfeld and his snowflakes, so I guess it went over my head. If it’s a warning that I may have offended someone powerful and thin-skinned, then, well, sorry-not-sorry, based on these facts. BTW, I enjoyed seeing you referenced as the expert in the Washington Post article on the Mangahas decision. Here‘s a link. Thanks for this awesome blog! – Alex  

  10. Alfonso Decimo says:
  11. Tami a/k/a Princess Leia says:

    I think the award is relevant to establish that there are NO measures to cure the conduct.  Rather, there are only measures to encourage the conduct, and the conduct will continue until CAAF steps in and gives another smack down like it did in Riesbeck.  It truly is the last sentinel of justice in sexual assault cases.
    That last piece of evidence is also extremely important to show that drunk people, even those extremely drunk, and puke drunk, are STILL “capable” of making the choice to have sex.  A choice that in hindsight was not a “good” choice,” or a “regretted” choice,” but nonetheless,” was a rational choice IN THE MOMENT.  And shows how improper TC’s argument was and how influenced the panel members were by improper argument–appellant may have been a jerk and morally bankrupt, but not a criminal.  Just more SHARP influence at work.

  12. k fischer says:

    “Trial Counsel of the Year?”  Flying the Jolly Roger on my door for a week would be far more satisfying.  Alex, I don’t think Z was referring to you.  You got skin like an elephant.
    I am interested in what Judge Ryan is going to say about this case based on her dissent in US v. Acevedo:

    In the current climate, where it appears that neither the convening authorities nor the lower courts are immune from external pressures, see, e.g., United States v. Barry, Dkt. No. 17-0162, Finding and Facts of Conclusion from DuBay Hr’g 6 (C.A.A.F. 2017) (finding “external pressures on the military justice system”); United States v. Riesbeck, __ M.J. __ (1, 5) (C.A.A.F. 2018); United States v. Boyce, 76 M.J. 242, 251 (C.A.A.F. 2017), this Court has a heightened responsibility to ensure that servicemembers receive fair and impartial justice, instead of a “rough form of justice.” United States v. Denedo, 556 U.S. 904, 918 (2009) (Roberts, C.J., joined by Scalia, J., Thomas, J., and Alito, J., concurring in part and dissenting in part).  

    But, then again, she might find the argument harmless beyond a reasonable doubt.  See US v. Jerkins where she joined the dissenting opinion.
    This case should be a primer on how TC, ATC, and SVP’s should protect the record.  They didn’t have to push the envelope on this case and tell the panel the accused’s CDC didn’t believe him, or call him a liar more than 20 times.  They had witnesses who were friends with the accused who testified that they told him to stay out of the room, the accused himself admitted that he witnessed the vic throw up, and he then hit her up for having sex.  Why screw up a perfectly good case with all these over the top comments?
    The Accused should learn not to have sex with a woman who is so drunk that (1) she has to go to the bedroom, (2) she pukes in front of you, and (3) your friends are telling you to sleep on the couch and not go into the bedroom.  All of these facts are really bad to show that the Accused’s belief, even if honest, are not reasonable to think that she had the capacity to consent.  Who wants to have sex with a woman who just threw up?  That’s just nasty.
    I hate giving panel’s an even/or theory of my case.  Like in this case, she either consented, OR the accused had a reasonable mistake of fact as to consent.  I think panel members get confused because it appears to some that perhaps defense counsel can’t figure out whether or not the vic consented.  I think it is ridiculous to believe, assuming that the vic was not consenting due to intoxication, that the Accused had a mistaken and reasonable belief that the vic was consenting.  So, I would say that the government’s comments are harmless beyond a reasonable doubt. 
    But, what if you don’t assume she was not consenting due to intoxication.   Can a woman who pukes consent?  Yes.  Can a woman in a blacked out state consent?  Seems like she could consent to drive a car.  If so, then there is evidence in the record that he asked her, she agreed, then proceeded to take off her bottoms.  If the panel members had reasonable doubt as to that defense, i.e. consent with no reference to the Accused’s reasonable mistake of fact argument, then they wouldn’t have to get to the mistake of fact.  And, in that case, I would not be convinced that the TC and ATC’s comments were harmless BAR.  All those “lying” comments might come into play.
    Finally….I really hope that AB stopped drinking Pink Panty Droppers.  Certainly, Andrews is 100% to blame for disregarding the directive of the owner of the home where he was staying.  Just because a girl is drinking Pink Panty Droppers and has a reputation for being a doorknob, doesn’t mean that you are going to get a turn.  Stay on the couch.  Pretty simple.  But, somewhere, sometime, some moron has instilled in AB the false sense of security that she can drink to the point of being incoherent because her friends will take care of her without worrying about dangerous rapists or guys who aren’t necessarily bad, but make really really bad decisions.  If she doesn’t change her ways, then this won’t be her first rodeo. 
    Not victim blaming.  Just stating a fact.

  13. stewie says:

    I don’t know Tami, “puke drunk” is getting pretty close to the line. In and of itself it isn’t evidence, but in my experience, “puke drunk” usually comes with fairly significant physical incapacitation. Passed out isn’t the standard…so “extremely drunk” is a pretty nebulous turn of phrase.

  14. Anonymous says:

    <a href=“”>This</a> is the guy who’s in charge of the Navy JAG Ethics Board.  That should speak volumes of the current state of TC ethics and alleged misconduct.

  15. evidence of intent? says:

    Zach – if we assume the award is an indicator of the officer’s competence, as you suggest, (versus being an award for getting 100% convictions) then would this award be some evidence that this particular prosecutor knew he was making improper argument?

  16. Zachary D Spilman says:

    I think so, evidence of intent?, and I think that matters because:

    It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

    United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

  17. k fischer says:

    But, how relevant is his competence to know that what he was doing was wrong, in a case where the evidence indicates that the Accused (2) was told to sleep on the couch and don’t go in the room because AB is in there because she is so drunk she passed out, (2) saw with his own eyes AB throw up, then proceeded to ask her if she wanted to have sex, and (3) admitted that he had sexual intercourse with her. 
    Seems like a trifecta to show guilt: (1) His friends objectively showed that she couldn’t consent. (2) him viewing her puke showed that his belief she could consent was not honest, nor reasonable, and (3) he penetrated her vulva with his penis.  I really don’t think the Government needed to make much of an argument to have him found guilty beyond a reasonable doubt.  I can see how the NMCCA found harmless error, the test for which does not include Isaac’s 311 balancing test, although I think Isaac provided an excellent, thought-provoking analogy using 311. 
    Judge Ryan seemed to allude to that balancing test in her dissent in Acevedo regarding the expansion of the Kidnapping offense by the majority, but she didn’t go that far in Jerkins where she joined the dissent which found the error of admitting the GOMOR harmless BARD.  

  18. Tami a/k/a Princess Leia says:

    “Puke drunk” is not “too drunk” to be capable of consenting to sex from a legal standpoint.  Someone who pukes but has the state of mind to rinse her mouth because puke breath isn’t sexy has the state of mind necessary to consent to sex.
    Puke drunk = too drunk is more SHARP talk.  Closer to the line, but doesn’t cross the line into criminality.
    So what does cross the line?  Losing control of bodily functions.  No being able to stand up or walk on your on.

  19. TC says:

    That’s a pretty grey area, and I think your examples show how unclear it is.  Not being able to walk on your own is more drunk than throwing up?  Maybe.  Sometimes.  I’m not sure.  They both seem to be pretty good evidence of severe intoxication.  That doesn’t mean either are dispositive facts indicating inability to consent, but they’re certainly both important info for the members to consider.  And then the members can decide if they, and the other evidence, is enough.  Rinsing your mouth out shows you’re not unconscious, but it doesn’t show you’re not just operating from instinct.  Same thing with taking your pants off.  Sure, if you do that while making out with someone and grabbing at each other, that shows ability to consent.  if you do that while stumbling to the bed in order to pass out, not so much.

  20. k fischer says:

    Puke drunk = too drunk is NOT more SHARP talk, your worship. That is a litmus test for most factfinders that will withstand appellate scrutiny for factual sufficiency 99% of the time.  I think panel members who have ever puked due to alcohol are going to have flashbacks to the room spinning, them falling down, lying on the floor next to the toilet, or getting the wastebasket next to the bed, and asking themselves “Would I ever consent to someone sticking their genitalia into any orifice on my body in that condition?  AND, would I ever attempt to stick my genitialia in any orifice of a person who puked?”  I would have a very hard time keeping a straight face arguing that a puker could consent, particularly under these circumstances. I really doubt CAAF could ever have reasonable doubt under these facts the way the NMCCA did in US v. Pease.  
    In addition to witnessing the two liters of Pink Panty Droppers AB drank, AB being so drunk that she had to be guided to the guest bedroom, and Andrews friends telling him to not go into the room, I think the fourth nail in Andrews’ coffin is AB puking in front of him.  All things considered, these are a pretty good indication that AB was incapable of consenting to the sexual act due to impairment by alcohol that Andrews knew or reasonably should have known of the impairment, but disregarded because he wanted to gratify his own sexual desires.  Not to mention that she made a fresh complaint, and didn’t tell law enforcement that she was kissing him or that she enjoyed parts of the sex, like the vic in Pease.
    By the way, puking is losing control of bodily functions, i.e. keeping things you drank and ate inside your stomach is the bodily function of your stomach, esophagus, and throat.  And, I have yet to see someone who was so sloppy drunk that they puked who was able to stand up and walk on their own.  So, if those things cross the line, then puking crosses the line.  I would have zero heartburn if SHARP trained Servicemembers worldwide that if a person is puking, don’t try to have sex with them.  Can’t say definitively that you will be convicted, but you will probably go to a General Court-martial.
    Has anyone ever seen an acquittal where the Accused has sex with a person who they just saw puke and the defense is, “I thought he/she was into me and was consenting”?

  21. stewie says:

    Why does one puke when they drink? Because you’ve literally drank so much alcohol that your body is trying to keep you from drinking anymore by regurgitating it. You don’t puke from one or two drinks, you puke because alcohol poisoning is on the horizon.
    Is puking by itself, with no other facts enough? No….you could be drunk and had bad clams. But as kf notes, you had puking plus other indications of severe intoxication, and I agree that’s way more than enough to justify lack of ability to consent.
    Sure, inability to walk is a STRONGER piece of evidence, but puking is pretty solid.

  22. k fischer says:

    Why hasn’t someone cited to US v. Knapp?  These facts sound really familiar.
    In the record, there is ample evidence of substantial alcohol consumption by A1C ELS, as she needed significant assistance leaving the party, getting into a car, and going to her dormitory room. Upon arrival, she vomited into a trash can in her dormitory room and needed the appellant’s assistance to clean it off. Her condition was such that A1C MS and the appellant agreed one of them should stay in the room with her. The appellant testified that, after A1C MS left, she vomited again and then spontaneously initiated sexual contact with him by rubbing his crotch, leading him to put his hand down her pants and digitally penetrate her. He claims A1C ELS removed her pants, so he put a condom on and started having sexual intercourse, which continued until he realized she was unconscious. He admits they engaged in no discussion about engaging in sexual activity; she did not reach for him, kiss him or even touch him during the intercourse; and she had not previously expressed any romantic or sexual interest in him. According to his testimony, he put her clothes back on while she was unconscious. The next morning, it was clear to him that A1C ELS had no memory of engaging in sexual activity. The appellant covered up his actions by surreptitiously removing the used condom and giving a false exculpatory statement to the nurse who examined him at the hospital later that day, by telling her he had been drinking the night before and then awoke to find himself in someone else’s bed.
    U.S. v. Knapp, 37718, 2013 WL 1319505, at *4 (A.F. Crim. App. Mar. 20, 2013), rev’d, 73 M.J. 33 (App. Armed Forces 2014)(finding error where MJ did not instruct panel to disregard Agent’s lie detector testimony)  In Knapp, Judge Ryan joined the dissent and said that the error was not prejudicial. Maybe puking is not the litmus test that would be upheld on appeal that I thought it was.  I stand corrected, your Highness.

  23. k fischer says:

    If I were a betting man, my money says that CAAF reverses, with CJ Stuckey authoring the majority opinion, with Judge Ryan dissenting or joining in the dissent finding harmless error.  I base this educated guess on Jerkins and Knapp.

  24. Vulture says:

    Stewie says “Why does one puke when they drink?”  Why does one have sex when they drink?  Wasn’t it supposed to be the great equivocator?  It gives the desire ect. ect.   
    As long as we are all being so self righteous, consider that if somebody in front of me just yacked up, they would have to do a lot more than just consent to having sex, they would have to ask for it.  They would not just have to take their pants off, they would have to drop my trousers too.  So Andrews banged a two bagger and like every one before and since regrets it.  It just so happens that one of the bags already had vomit in it.
    This isn’t a question of the Accused behavior.  It’s about the ATC.  We are considering it in the vein of how Zach and evidence describe it.  Does someone who should have known better get a pass so that he can keep an award?  No, don’t think so.

  25. stewie says:

    kf I didn’t say “puking was the litmus test,” I said it wasn’t necessarily enough by itself, but it was a strong indicator and combined with other evidence led to a pretty solid argument that someone is incapacitated.
    “Is puking by itself, with no other facts enough? No…”

  26. k fischer says:

    I think the Government’s argument is going to be “No, the lower court did not err because the facts unique to this case (notwithstanding the facts contained in Knapp) show that the misconduct was harmless beyond a reasonable doubt.”  And, to figure out whether the misconduct was harmless beyond a reasonable doubt, you have to look at the strength of the Government’s case, the Accused’s actions and knowledge.  So, the puking is pretty relevant.  I don’t know if it will be enough to overcome the misconduct.  The puking and similar manipulation by the Appellant in Knapp certainly wasn’t enough to overcome the lie detector testimony in Knapp, although the Majority didn’t really address whether the error was harmless BARD the way the dissent did.
    I would be interested in knowing what the outcome would be in a case where the Accused just lied on his back and let the female who just puked perform sexual acts on him, assuming that to be true. If she, in a drunken blackout state, causes the penetration of her orifices, while he was lying on his back with his hands behind his head, then could he be found guilty?
    Can’t wait to listen to the arguments audio.

  27. k fischer says:

    kf I didn’t say “puking was the litmus test,”

    Stewie, I know you didn’t say that. 
    I said that in response to my hangry response to Tami’s post. (I apologize, Tami.  There is a direct correlation to my snark in relation to my level of hunger) 
    Specifically, I said that puking was the litmus test for panels that would survive appellate scrutiny.  Then, I read Knapp, which reversed a conviction where the appellant testified that he saw the CW puke and helped clean it up, told his friends to trust him that he would take care of her, and said that she actually consented, facts in which the dissent relied upon to say the error in that case was harmless.  So, I told “Your Highness” that I stood corrected on the appellate scrutiny part.  I still think that it would be a litmus test in trial practice and would be quite hesitant about telling a potential client who says he witnessed  the CW puking prior to sex that I thought there was even a sliver of a chance he would be acquitted at trial. 
    I certainly don’t disagree with your assessment “Is puking by itself, with no other facts enough?  No…”  But, I think that in virtually every puke/incapable of consent conviction, there will be other facts that indicate severe intoxication, slurring, stumbling, having to cut the party short, putting the pukee to bed, monitoring the pukee so she doesn’t choke on her own vomit, helping the pukee walk, cleaning up the pukee who can’t clean herself, large amounts of alcohol consumed, blackout, etc.  But, if the facts were, I took a shot of Tequila to start off my night, but I couldn’t hold it down, threw up, and drank water the rest of the night, then went home with the accused where I was so intoxicated I was unable to consent, then I don’t think even the most stacked Coast Guard panel would convict.

  28. k fischer says:

    Stewie says “Why does one puke when they drink?”  Why does one have sex when they drink?

    Quite simply,
    1.  People puke when they drink because the alcohol consumed in such a high quantity becomes a poison that the body involuntarily expels.
    2.  People have sex when they drink because, in moderation, alcohol provides a certain “liquid courage” to do the things they really want to do, but the filter they possess when sober does not allow them to do so.
    3.  The vast majority of the time, people have sex after they puke from drinking because a man does not to wait for the puker to sober up out of fear that the puker, when sober, will be able to fight him off or coherent enough to say “No.” 
    If this statement seems self-righteous, then it is probably because I’ve been around women who have puked, and I did not feel any sexual attraction towards them, nor has a puker ever tried to hit me up for sex after puking.  Maybe, I don’t have that certain….je ne sais quoi….that allows drunk females to overcome the utter feeling of sickness alcohol poisoning does to them.  And, to be frank, back when I was a drinker before I got married, I was usually the one puking at parties and having to be carried out of the bar or put to bed. 

  29. Vulture says:

    K.  Great.  Let every lawyer go get tipsy before hitting the court-room because they have the courage now.  I’ve never been a drinker, never been married, and the next girl better hope that shit is like riding a bike because I am certainly more likely to puke than impress her.  But this alcohol bit, at least the chemistry of it, isn’t part of the discussion unless we take it self righteously.

  30. Alfonso Decimo says:

    Regarding the comment earlier that the young prosecutor usually gets a low-level award (probably a DON Achievement Medal) for his recognition as “prosecutor of the year” I did some research on how to revoke an award. Apparently the awarding authority must request any revocation from a higher authority and consider the awardee’s due-process input first. Alternatively, he/she walks away with an advantage over the rule-followers at the next promotion board. This is important b/c these are the junctures where the JAG Corps defines the quality of its future and present leadership.

  31. Peter E. Brownback III says:

    k fischer,
       Re your questions, “Has anyone ever seen an acquittal where the Accused has sex with a person who they just saw puke and the defense is, “I thought he/she was into me and was consenting”?”
       In 1997 I presided over a case at the Mannheim Legal Center. D testified that he saw her throw up in a trash can, that he wiped puke off her face, that she wanted to foxtrot, and that he didn’t kiss her, despite her attempts to kiss him, because he didn’t want to put his tongue in a mouth that had just puked.
     She testified that she would never foxtrot anyone after she just puked and that she had no memory of wanting to foxtrot D.
     Brilliant DC went EP rather than JA and D walked.

  32. Fred says:

    I saw a case in Japan years ago where the two Sailors were walking back to the base with other friends.  She pukes everywhere, including on his shoes.  They go to an apartment with others to get cleaned up.  He claims she wanted to foxtrot.  They go back to base afterwards and there is video of her negotiating the carrier brow well and getting past the Q-deck.  Similar testimony as Brownback’s case; and D walked. 

  33. K fischer says:

    My litmus test is busted again.  Thanks, Gents.  I stand corrected again.

  34. Tami a/k/a Princess Leia says:

    Puking is no more of a “litmus test” than a lack of memory in determining when someone is “too drunk” to be capable of consent.  Is puke drunk sexy?  No.  Would you have puke drunk sex with someone if you were sober?  No.  Are those legal standards?  No.  Is having puke drunk sex with someone risky?  Yes.  But so are sky diving and swimming in shark-infested waters.  Risky, not illegal.
    When I say losing control of bodily functions, I’m talking about urinating and defecating–THAT is more than just “ew, gross, who would do that.”  I think that is your “bright line” incapacitation standard, as that is recognized as alcohol poisoning on the verge of causing unconsciousness, potentially even death.

  35. stewie says:

    I legitimately confused at your separation between drinking so much that you cannot control regurgitating it, and urination and defecation.
    Vomiting is literally one of the signs of alcohol poisoning along with yes loss of bowel/bladder control.
    Vomiting isn’t merely an “ew gross” situation, you don’t vomit ordinarily after one or two drinks. You vomit after a significant amount of alcohol.

  36. Jeff Foxworthy says:

    If you have sex with a women who drank 2 liters of Pink Panty Droppers, went to the bedroom and vomited in front of you, then you MIGHT be a rapist.
    If you have sex with a woman who you saw drink handle of Bourbon, had to be carried to the bedroom, and you saw that she urinated and defecated on herself, then you MIGHT be a necrophiliac. 
    If you argue that a women who drank 2 liters of Pink Panty Droppers and was guided into a bedroom where she vomited in the bed is capable of consenting to sexual intercourse, then you MIGHT be a criminal defense attorney.
    Seriously. What’s wrong with you people?

  37. k fischer says:


    Puking is no more of a “litmus test” than a lack of memory in determining when someone is “too drunk” to be capable of consent.  Is puke drunk sexy?  No.  Would you have puke drunk sex with someone if you were sober?  No.  Are those legal standards?  No.  Is having puke drunk sex with someone risky?  Yes.  But so are sky diving and swimming in shark-infested waters.  Risky, not illegal.

    Those questions are based on the Accused’s decision making process.  Panel members, when trying to figure out if the puking vic could consent, are more likely going to think about when they have been so drunk they had be put to bed where they puked, and how they felt the next morning when they couldn’t remember anything.  My experience has been that they will conclude that the CW was not capable of appreciating the nature of the sexual contact. 
    Then, they will use the questions you asked to conclude that the Accused knew or should have known he was engaging in some really risky behavior and convict.  
    In the case Fred referenced, there was some good evidence that even though she puked on the way back to the base, she appeared to have regained her composure enough to negotiate the brow well.  So, perhaps they believed that it was possible that she got rid of the intoxicating effects of the alcohol and was capable of consenting.  I’d like to know if there was a solid motive to fabricate in that case because I’ve found that you need one to get an acquittal.
    I infer by Judge Brownback’s comments on the brilliant DC’s decision to go EP rather than JA in the case he referenced, that he would have found the Accused guilty and there wasn’t a good motive to fabricate or evidence that she expelled the incapacitating liquor she consumed to rally.  
    But, I agree that urination and defication on oneself is a pretty good indicator that they are incapable of consenting.

  38. Tami a/k/a Princess Leia says:

    Just because someone pukes doesn’t mean they’re incapable of consenting.  Trial counsel wants the panel to focus on the moral outrage of “taking advantage” of a drunk person, and puke drunk people don’t make good decisions, and if the accused had listened to the SHARP/POD people, he wouldn’t be accused.
    Defense counsel should be throwing the BS flag and address the pink elephant in the room–drunk people don’t make good decisions, but they can still make decisions.  Even after she pukes, IF she is doing things and saying things afterwards demonstrating an ability to understand, a decision to engage, and communicating that decision, then you have “capable of consenting.”  At that point, it’s a credibility issue.  You get the panel to commit to making the distinction between moral liability and criminal liability and only holding your client responsible for criminal liability.
    I’m listening to the oral argument–I think Judge Stuckey gets it.  Puke drunk is not aesthetically pleasing, but she took her pants off.  That’s after he asks if she wants to have sex (which by the way is the current SHARP/POD brainwash “affirmative consent” standard).  That’s a clue she has “capacity.”  Drunk sex isn’t criminal, and puke drunk isn’t automatically “incapacitating.” 
    I still remember my 22nd birthday, more than 2 decades ago.  4-5 bars, where my friends, boyfriend, and I drank several kamikaze drinks, several Sex on the Beach drinks, and a Long Island Ice Tea.  It was raining, so we ran down the street with plastic bags over our heads so we wouldn’t get our hair wet.  We were at the bar where I got my free birthday mug of beer.  We had some shooters too.  I was drunk, but still doing pretty good until someone got me a large shot of Fireball whiskey.  One sip, and I knew I wasn’t going to make it to the bathroom in time, so I puked in my plastic bag because I didn’t want to puke all over the floor in the bar.  I haven’t touched any cinnamon-flavored alcohol since.  And yes, I managed to walk out of the bar afterwards and do all kinds of things that no one would have questioned my “capability” simply because I puked.
    K fischer, I’m not sure you need a “good motive to fabricate” as much as you need a common sense story from your client, evidence to corroborate it, hours spent on preparing the client for testifying, and a great voir dire educating the panel and getting them to talk about their past experiences with alcohol and getting drunk and probably puking and still being able to make decisions and being responsible for their actions.
    And TC, if it’s unclear to you, and it’s a “gray” area, and if we, the “experienced” people, the LAWYERS, have no clue what “incapacitated” looks like, and if we can’t explain it to 5 civilian judges who have been lawyers and/or judges longer than some of us have been alive, then how the heck can we expect the typical 18-22 year old accused to know or “reasonably should have known” what “incapacitated” looks like?
    Ironically, I, the lone woman in this thread, am debating with a bunch of men about an archaic mentality of men being responsible for women even when women are still capable of making their own decisions.