Audio of today’s oral argument at CAAF is available at the following link:

United States v. Andrews, No.17-0480/NA (CAAFlog case page): Oral argument audio.

6 Responses to “CAAF Argument Audio: Andrews”

  1. Less Concerned says:

    Appellant’s Attorney:

    Immediately before the sexual intercourse that occurs in the bedroom … When Seaman Andrews goes into the bedroom, um, he describes AB as capable of consenting.  Um, he goes into the bedroom.  He lays down next to her.  She notices that somebody’s there; asks that person to move over.  As he goes for the blanket, um, he asks her if she’d like to have sexual intercourse.  And she does vomit at the point, um, and, [Laughter from the Chief Judge] uh, that’s something to consider in this case, your honor.  That’s a fact among the factors.

     
     Chief Judge: 
     

     Aesthetically, at least.

     
     Appellant’s Attorney:
     

     Yes, your honor …

     
    *** 
    Chief Judge:
     
    [addressing the question of whether the Victim’s scratching the Appellant’s back suggest consent as the Appellant argues, or, as in the Chief Judge’s view, it is ambiguous at most given that it could also be her trying to fend off her attacker]
     
     

    Maybe I should take my law from Petty Officer [Freddy] Kruger.

     
     
    ***
    Judge Ryan addressing the TC’s award: 

    [O]r did you decide to put it in your brief for decorative purposes? . . . So do you think it is appropriate for you cite to things that are not a part of the record? . . . Is the supplement part of the record?

  2. k fischer says:

    You can hear the disdain in Judge Ryan’s voice when she thanks Appellate defense counsel for agreeing that it was inappropriate to include the award when it was not in the record.  And, you can also hear her impatience with Government appellate counsel wasting her time talking about waiver and whether there was misconduct considering that they didn’t certify error in the findings of the CCA.  
     
    Pretty sure she’s going to find harmless error, which I can understand. I mean she pretty much grabbed him by the ear and led him to making that argument.
     
    But, I’m not sure what the panel relied on when it found AB lacked the physical or mental ability to make or communicate a decision about whether she agreed to the conduct.  
     
    Did they think the Accused was lying when the facts in evidence indicated that she communicated to him that she wanted to have sex with Andrews?  Because it appears that the evidence, which was not contradicted by AB, was that Andrews asked her if she wanted to have sex.  Her answer assumes that she mentally contemplated the question and communicated in the affirmative.  So, we don’t know what the panel based their finding of guilty on that particular element.  Did they think she was in a black out state and could not make the decision, so it didn’t matter whether or not she communicated, or did they think that she could have made a decision in a blacked out state, but that Andrews was lying about the Q&A.
     
    What we do know is that the ATC harped on that point, said Andrews was lying about this unrefuted conversation by AB, and then said that the CDC didn’t even believe his own client.  So, how can the CAAF be convinced BARD that the panel was swayed by the evidence alone and not that the panel thought this solicitation for sex and affirmative response was not based on the ATC’s improper argument, which is only one facet of prosecutorial misconduct?  

  3. Charlie Gittins says:

    Blacked out is not the same as unconscious.  People all the time in a state of “black-out” due to intoxication do things voluntarily and willingly — like get in their car and drive it and then not remember doing so — e.g., “how the hell did I get home last night?”.  The technical term for black-out is “fragmentary memory” and a person in that state, according to the FBI Lab’s top toxicologist, may manifest goal directed voluntary decision-making that they cannot remember after sobering up.  Sounds like the accused’s convo with the prosecutrix fits that model.
     

  4. Bill Cassara says:

    Charlie: In my experience panels gloss over expert testimony regarding black outs. If the alleged victim says she does not remember, they pretty much turn off their ears.

  5. k fischer says:

    Bill, 
     
    I agree.  It’s almost as if Defense counsel using that testimony is conceding that she was so drunk that she couldn’t remember anything and could not appreciate the decisions she was making due to alcohol, which then gets you to the reasonable mistake of fact defense where there will probably be some witnesses how drunk she actually appeared.
     
    It might be a better argument to highlight all the things she did and remembered doing, then mentioning that she conveniently said she forgot all the things that your client testified to regarding her consenting.  She’s just saying that she blacked out.  The problem is where there is credible independent evidence that a 100 pound female drank 10 shots of vodka in two hours. like a high BAC.  A low BAC and strong motive to fabricate would lend itself to a really good regret sex/false allegation argument.   

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

    The key is to have an expert testify it doesn’t matter if the decision is “good” or “bad” because drunk people never make “good” decisions.  Can drunk people make decisions, period?  I had a client with a .35 BAC make a decision to stab his roommate in the liver, also with a .35 BAC.  Obviously not a “good” thought process.  But his thought process was that he believed his roommate stabbed him in the back earlier in the evening and lied to him, so he decided to jab the roommate so he could see how it felt, and the knife went further than intended.  And to strangers, both of them looked stone-cold sober.  All their friends knew they were completely wasted.  They were both doing a variety of activities that night that required a lot of coordination. 
     
    Took my client 17.5 hours to sober up before CID interrogated him, during which time multiple people talked to my client, providing information about what happened, both factually correct and incorrect, because of course there were gaping holes in my client’s memory of what happened.  Fortunately our expert in forensic toxicology was able to explain that when people talk about what happened to someone who experiences an alcoholic blackout, that information gets implanted as a false memory.
     
    People are capable of making decisions when they are blacked out drunk.  They simply don’t remember.  The distinction is critical.  BAC, if known, is only one factor, but not dispositive.  Obviously, my client had a history of alcohol consumption, most people would be in a coma or dead at .35 BAC.  The panel probably wouldn’t have believed it if we hadn’t had an expert in forensic toxicology.  It was obvious CID overlooked the impact alcohol consumption had on my client’s decision-making and beliefs.  Ultimately, the evidence supported our theory, not the government’s and we ended up with an extremely favorable result.
     
    It also helped that we bought $260 worth of alcohol and set it up in front of the panel so they could see for themselves how much alcohol everyone, including our client, had to drink that night, and the days leading up to the stabbing.  And because it was unopened we were able to return it.  Demonstrative evidence is powerful.