Last month, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

Applying that decision, a military judge has dismissed the charges of rape of a child preferred against retired Army Major General James J. Grazioplene. Those charges were part of the #1 Military Justice Story of 2017 – Exercising court-martial jurisdiction over retired members.

The Army Times reports here:

The alleged abuse included sexual intercourse, molestation and fondling of the alleged victim on multiple occasions, beginning as young as age three.

U.S. Army Circuit Judge Col. Daniel Brookhart noted in his March 23 ruling that at the time of the alleged offense there was “no unique UCMJ article criminalizing the rape of a child.”

“…the age of the victim was not an element of the offense and bore no impact on the punishment authorized in the statute,” Brookhart wrote.

That wouldn’t have stopped Grazioplene from being charged on this allegation, though, because the broader crime of rape under UCMJ at the time could have result in a death penalty. And with the death penalty as a punishment, there was no statute of limitations after 1986.

The first three charges on the six-charge sheet fell under a three-year statute of limitations from before 1986 and were tossed out at a January hearing.

Brookhart then had to rule on the final three charges, which fell in a period from 1986 to 1989, in which rape could be punishable by death and had no statute of limitations.

However, U.S. case law later deemed it unconstitutional to execute someone for adult rape. The U.S. case law and UCMJ punishments both remained in place and at odds until 2008, when military law was changed to remove the death penalty.

Military courts had stood by previous precedent though, allowing cases that previously had no statue of limitations to continue to be charged.

But in February, the Court of Appeals for the Armed Forces, or CAAF, ruled against precedent, setting the statute of limitations on rape cases at five years.

The Army Times report also includes some inflammatory statements from a civilian attorney representing the alleged victim:

The alleged victim’s attorney, Ryan Guilds, told Army Times that his client is one of the strongest sexual assault survivors he has ever met, and “it’s really a shame that the justice system failed her.”

“The important thing to understand from the court’s ruling is it doesn’t have anything to do with the truth of what happened to a little girl from the age of three to 18,” Guilds said. “Or anything to do with the monster who violated not only his duties as a man and a human being but as an Army officer.”

23 Responses to “Grazioplene charges dismissed in wake of Mangahas”

  1. John Marshall says:

    It would be interesting to see some scholarship on the ethics limitations of a victims counsel commenting to be press.

  2. Casual Observer says:

    Does anyone have COL Brookhart’s ruling?  It would be interesting to read.

  3. Watch Yo Mouth says:

    AR 27-26 (Rules of Professional Conduct for Lawyers), Rule 3.6 (Tribunal Publicity) applies to “non-government attorneys who practice in proceedings governed by the Manual for Courts-Martial” (which seems like it would cover civilian VLC), and states in pertinent part:
    (a) A  lawyer  shall  not  make  an  extra  judicial  statement  that  a reasonable  person  would  expect  to  be  disseminated  by  means  of public  communication  if  the  lawyer  knows  or  reasonably  should know that it will have a substantial likelihood of materially prejudicing  an  adjudicative  proceeding  or  an  official  review  process  thereof.
    (b) A  statement  referred  to  in  paragraph  (a)  ordinarily  is  likely  to have  such  an  effect  when  it  refers  to… a  criminal  matter  or  any  other  proceeding  that  could  result  in  incarceration, discharge from the Army or other adverse personnel action and that  statement  relates  to:
    (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation, or witness […];
    (4) any opinion as to the guilt or innocence of an accused or suspect in a criminal case […];
    (7) the  credibility,  reputation,  motives,  or  character  of  civilian  or military  officials  of  the  Department  of  Defense.  This  does  not  preclude  the  lawyer  from  commenting  on  such  matters  in  a  representational  capacity.

  4. Former AF Capt says:

    Watch Yo Mouth… I don’t know if the bolded section applies in this scenario because of the limiting language of paragraph (a).  There must be “a substantial likelihood of materially prejudicing  an  adjudicative  proceeding  or  an  official  review  process”.  In this case, I’m not sure there is a substantial likelihood of the same.  Do we have any reason to believe an administrative action (grade determination?) will follow the dismissal of charges?  Was there any notice the Army will immediately pursue an appeal?  If the answer to either is no, then as inflammatory as the comments are I do not know if there is an ethics issue.
    Separate from all that, I would be curious if folks are familiar with the law of defamation in similar cases.  Gut says that he’s a public figure at this point, so there’s more leeway for commentary… 

  5. slyjackalope says:

    Another example of why statutes of limitation are stupid.  If the Government can prove its case and not violate speedy trial or any other rights, why limit prosecution to an arbitrary date?

  6. mgscott says:

    This case was a waste of time and resources from the beginning!

  7. Nathan Freeburg says:

    slyjackalope: do explain how you’re going to defend yourself against an allegation that you did something thirty years ago. 

  8. k fischer says:

    I think victims of crimes who wait a year to report said crime are stupid.  I think a law should be passed that if they don’t report the crime immediately, then that is obstruction of justice.  Because they fail to report a crime, that places society at large at peril by dangerous criminals who will go on to repeat another crime.

  9. jagaf says:

    @kf, so if alleged victim reports the sexual assault a year later, admits the delay, and is successfully prosecuted for obstruction, does s/he have the conviction vacated if the alleged assailant is subsequently acquitted? I know you like to stir the pot, but this is CD-level crazy…

  10. k fischer says:

    jagaf, 
     
    So, what your saying is that I won the “who can post something more ridiculous than not so slyjackalope” contest I was having with myself? 
     
    Thank you.

  11. slyjackalope says:

    Do explain why there is no statute of limitation on murder.  If it happened 30 years ago, is that mere fact going to protect you?
    My point is an arbitrary date, on or before which the Government can prosecute but one day later cannot, is stupid.  Different states have different statutory periods and I’ve never seen a rational explanation why, for instance, one state says 5 years and another state says 7 years to prosecute a felony.  Wyoming has no statute of limitations on any crime and is getting along just fine.  Prosecutors (except in the military) are not going to initiate prosecution on a very old case that they can’t possibly win.  Conversely, if the accused is prejudiced by the delay in initiating the prosecution (ex. exculpatory witness is now deceased), that is one of the factors that will be taken into account whether his right to a speedy trial has been violated.
    Someone please explain why my post is ridiculous.

  12. k fischer says:

    Because in murder, there is a distinguishable crime with evidence that the victim was killed by someone else, and there is no burden to be placed on the victim to come forward to report the crime.
     
    Perhaps, a statute of limitations on a crime is important to encourage prompt reporting and prosecution to ensure that all evidence can be collected, both exculpatory and inculpatory, so that the Accused can have a fair trial.  This also encourages prompt reporting, so that a criminal does not walk the streets free to commit further crimes.  Murder victims can’t report they are victims.  The coroner does.  Now, I would accept a tolling of the statute for sex crimes when the perpetrator is unknown to the victim, and decades later, his DNA shows up in CODIS which matches evidence from the crime scene.  But, to report a rape where the perp was known to the vic decades later does nothing to protect society or ensure that the Accused has a fair trial.  And, if a victim whines about that, then I guess they should have come forward sooner.

  13. slyjackalope says:

    How does a “distinguishable crime” with “no burden to be placed on the victim to come forward” alleviate the issue that Nathan Freeburg brought up about being able to defend yourself 30 years later?
     
    While you have a good policy argument for statutes of limitation encouraging victims to come forward sooner, do you think that’s why the various legislatures enacted them?  Does the average member of the public even know what the statute of limitation in their state is for any particular crime and would that knowledge even play any part in their decision making process whether or not to report a crime?
     
    My personal view is legislatures enact statutes of limitation out of a sense of fairness to the accused and for policy reasons that it’s just not worth it to try to prosecute old cases.  Sometimes this policy decision serves the interests of justice, but sometimes it doesn’t.  When it doesn’t, an otherwise guilty person (assuming guilt for this instance) cannot be prosecuted and society is not protected from that person based on an arbitrary date that is neither constitutionally-required nor even necessarily smart.

  14. Vulture says:

    A statute of limitations isn’t constitutionally required but it is certainly constitutionally permissible.  As the states have enacted these limitations it is smart for the federal government to enact them as well.  Where is Kyle’s argument faulty?  If a law was past that did make it obstruction of justice to report a crime, yeah that could result in the absurdity that afjag is proposing.  Isn’t the question that this case is answering hemming in any arbitrary notion?  It’s a common law court.  If government wants a better answer, then they will certify the question.

  15. stewie says:

    skyjackalope, you do realize that murder is literally the only crime where it is impossible for a victim to come forward right?
    It’s also the most serious crime there is.
    In reality I suspect you know all the answers very well but for someone reason are playing the contrarian role for today’s events.

  16. slyjackalope says:

    stewie, no I don’t realize that because that makes no sense for many reasons.  There are many cases where the victim did not die immediately, reported to the police who committed the act that eventually caused the victim’s death, and the person who committed the act was charged and convicted of murder.  Conversely, there are many crimes where “it is impossible for a victim to come forward” that aren’t murder.  For instance, how many babies have been molested and it is impossible for them to come forward because they have no clue what even happened?  How many people in comas have had the same thing happen to them?  How many elderly people are ripped off by banks, insurance companies, nursing homes, sketchy relatives, and Nigerian princes every day who had no way of knowing they were even victims?
     
    There’s no doubt that murder is one of the most serious crimes and I’m sure that’s why legislatures have almost universally (if not every one of them, I don’t know for sure) exempted it from their statutes of limitation.  In my opinion, murder should never be subject to a statute of limitation.  However, I still think it’s stupid for legislatures to arbitrarily limit the prosecution of other lesser offenses, and the dismissal of charges that started this article is a perfect example.  Until Mangahas, was there any constitutional defect relating to speedy trial or due process in this case?  I seriously doubt it or COL Brookhart would have already dismissed it based on those defects.  Instead, we now have a viable and constitutionally-sufficient prosecution that can’t go forward when it otherwise could (and should) have.

  17. Vulture says:

    There are many cases where the victim did not die immediately, … the person who committed the act was charged and convicted of murder.
    I am not sure if that is contrarian, but it is sly.  Might I suggest this article in Army Lawyer.  On page 28 it contemplates the circumstance where one of the 32 attempted murder victims of Hasan dies of his injuries.  Then it posses the question of whether Hasan could later be charged for that murder.  The double jeopardy clause was designed as a check on arbitrary government power.  The statutes of limitation are no different.  It is only you that are saying they are arbitrary.  I see something passed into law by a proper legislature.  
     
     
     
    Sources of the law.  They arrive at us how?  It may 

  18. Concerned Defender says:

    Not to be outdone – I agree with K Fischer on the SoL points.
    I am generally in favor of short SoLs beginning when the victim/state knew or reasonable should have known of the offense.  Perhaps there might be a tiered system.  One year for a verbal allegation alone, or a longer period of the allegation is supported or corroborated by clear forensic evidence (video, DNA, etc.).  Might need to be a mini-trial to determine IF that evidence can get a SoL into this secondary tier. 
    Because, otherwise, long SoLs provide incentives for victims to wait (or rather, provide no incentives for promptly reporting).  It puts an accused in a long-term unfair position and if someday charged nearly impossible defense due to faded memories, destroyed evidence (such as love letters, phone records, emails, and so forth).  I could see other tiered scenarios, perhaps an initial report of a stranger rape tolling the SoL pending a much later the DNA is matched to the stranger.  
    But I am very uncomfortable with purely verbal accusations being sufficient much beyond a brief SoL of 1 or 2 years.  Defending that works against the 5th Amendment and compel by natural operation the accused to testify in defense or have the accusation go unanswered.  An accused is essentially forced to take the stand with no other exculpatory evidence likely available to deny the often lengthy and emotional verbal accusation.  I’d venture the conviction rate on those is quite high, and that’s counter to the basis of our due process protections in my humble view.
     
    In the underlying case, US v. Mangahas an allegation came 18 years later on a SoL of 5 years.  In that time period, critical evidence was made unavailable and an exculpatory witness died.  

    Statutes of limitations represent the legislative judgment
    that “it is unjust to fail to put the adversary on notice to defend
    within a specified period of time and that ‘the right to
    be free of stale claims in time comes to prevail over the right
    to prosecute them.’ ” United States v. Kubrick, 444 U.S. 111,
    117 (1979) (citation omitted). Thus, in the realm of criminal
    prosecution, “after a certain time, no quantum of evidence is
    sufficient to convict.” Stonger v. California, 539 U.S. 607,
    615 (2003) (citation omitted). An unlimited statute of limitations
    for “any offense punishable by death,” reflects Congress’s
    intent that the passage of time should not bar the
    prosecution of the gravest offenses. See generally 5 Wayne R.
    LaFave et al., Criminal Procedure§ 18.5(a) (4th ed. 2015).
    Nonetheless, the Supreme Court has indicated that criminal
    statutes of limitations are to be “liberally interpreted in favor
    of repose.” United States v. Marion, 404 U.S. 307, 322
    n.14 (1971) (citing United States v. Habig, 390 U.S. 222, 227
    (1968)).

     

  19. slyjackalope says:

    Concerned Defender, I’m kind of with you because what you propose makes more sense than an arbitrary date that has nothing to do with the facts of the case and whether the Government slept on it rights at the expense of the accused.  I’m not a fan of statutory limits though because those are subject to the whims of politicians and a right given by statute is easily rescinded.  I would rather see a modification of the Barker v. Wingo factors to emphasize a greater balance between the Government expeditiously investigating and prosecuting what it knows about versus the risk to the accused not being able to adequately defend himself.  The longer the Government waits and does nothing, the more likely it is both the Government and the accused have lost the ability to find exculpatory evidence.  In my opinion the assertion of the right to a speedy trial should mean nothing because what other constitutional right do you have to demand for it to actually still be a right.  It’s not the accused’s duty to demand the Government do its job right.

  20. slyjackalope says:

    One thing I forgot to post.  Common sense says there are offenses that occurred in the distant past, the Government could not have known or reasonably should not have known about, and the accused still cannot be prosecuted even though there has been no violation of his right to a speedy trial.  Due process requires that the accused have reasonable access to the evidence (favorable and unfavorable) and there are going to be instances where that is not possible through no fault of the Government.  In such cases, the Government and society are going to have to go without in order to protect the rights of the accused.

  21. Kettle Black says:

    I don’t have a fundamental disagreement with statutes of limitation, but the rationale that they encourage timely reports of crime from victims seems silly to me.  The statute of limitation is likely one of the last things on his/her mind.  We’re talking about the average person, not someone in the legal field.  The victim is going to have little idea what time limit exists on the applicable offense – if they even know what the exact offense is or what a statute of limitation means.  It’s not as if people are walking around with a penal code in their pocket.  
     
    The rules protect interests of fairness for the accused, and are a nod to the idea that a petty offender should not forever live with the Sword of Damocles hanging over his or her head.  IMHO, encouraging victims to report in a timely manner is not a factor. 

  22. Nathan Freeburg says:

    I don’t have a problem, conceptually, with a robust speedy trial right instead of SoLs, I’m just not sure that we would really get it if we lost SoLs altogether.
    Time is always going to hurt the defendant, especially an innocent one.  If I’m accused of sexually assaulting a woman in a bar last Friday night I can defend myself vigorously.  I know where I was (playing poker).  Camera footage is even be available.  If I’m accused of sexually assaulting a woman in a bar in 2003, I’m probably screwed.  Alibi type defenses are enormously powerful.  And in most cases you’re going to lose them given enough time.
    Other thoughts on some of the comments above: if someone commits a crime 30 years ago and hasn’t been in jail for other offenses since then, they’re not a threat to society.  Retribution is the only remaining reason to punish them.
    Yes, SoLs arbitrarily change from state to state.  So do criminal offenses.  So do ages of consent.  That might be an argument for a more federal system, but it’s a different discussion.

  23. Concerned Defender says:

    @ Kettle Black
    I would argue that not timely reporting means that the crime was apparently  not a big deal to the “victim” or otherwise trivial or actually didn’t happen, or there are other motives for reporting at a far later date. 
    Try calling your insurance company and tell them now that 15 years ago someone broke into your house and stole a $100,000 painting.  You can’t prove it of course but your word is sufficient to now collect on insurance.  See what they say.
    Reality is that if someone robs you at gunpoint today, you will report it today.  If you go to your garage and find it open and your car stolen you call the cops within the hour. 
    Human reality is that when you are a victim of a crime, it’s incumbent that you report it swiftly.  This allows for justice for all parties, and investigators can gather fresh evidence.   I have INHERENT disbelief in someone who waits an unusual amount of time to report a crime.  I’m generally okay with tolling an SoL for a reasonably long period of time if it’s reported swiftly.  I’m NOT okay with endless SoL when it’s not reported for weeks, months, years or decades.  That’s not a crime.  That’s vindictive motive almost universally in “sex assault” cases.  If it takes a person “weeks” to figure out if they were a victim, they aren’t a victim.  This isn’t a “discovery” at a later date, like a stolen diamond ring off your table weeks after hosting a party.  This is an assault for which the victim was aware of contemporaneously or immediately thereafter, within a day for sure.  
    Crimes should be reported immediately upon discovery or occurrence, and tolling for long periods allowed only in situations where reporting was impractical (kidnapping or children or personal safety, etc.).  Failing to report means no crime occurred.   Tolling for long periods should only be allowed and cases re-opened when forensics match an unknown suspect.  The stolen artwork reported timely turns up for sale 7 years later, providing a suspect.  The DNA match happens from a timely reported rape, in Codis, 10 years later.  And so forth.