Three years ago, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. 2015) (CAAFlog case page), a divided CAAF held that sexual contact – as defined by Article 120(g)(2) (2012) – includes both body-to-body contact and object-to-body contact.

The alleged object-to-body touching was stethoscope-to-breast contact during examinations performed by First Lieutenant (O-2) Schloff, a physicians assistant. The procedural posture of the case was unusual; Schloff was convicted of one such touching and sentenced to a dismissal, and then the military judge dismissed the specification as failing to state an offense. The Army CCA reversed and CAAF affirmed the CCA, remanding for further proceedings (ordinary Article 66 review).

On remand Schloff alleged that the findings were tainted by unlawful influence because during deliberations two of the members argued that  the Army needed to appear strong on sexual assault issues.

In an unpublished opinion issued in February, a three judge panel of the Army CCA agreed, and it reversed the conviction and authorized a rehearing, concluding:

Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . . . was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL
JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military
judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process.

Allowing this UCI to hover would prejudicially impact the fairness of appellant’s court-marital.

United States v. Schloff, No. 20150724, slip op. at 4 (A Ct. Crim. App. Feb. 5, 2018) (link to slip op.).

The facts include that:

At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

All the members had the ability to hear these statements and all members were engaged in the deliberations. The members debated these comments, with [two of the members] in disagreement with [COLs JW and AM]. The discussion regarded the general climate on sexual assault in the Army and in Korea at the time and Army policy. [LTC JV] argued that the case should be decided on the merits and that ‘the outside’ shouldn’t be brought into the deliberations, or words to that effect. The members then debated the evidence and voted on findings.

With regard to the comments about the ‘climate,’ [COL AM], the second senior member, believed the political climate ‘was put aside to deal with the facts,’ and was not further discussed. However, [LTC JV] stated the debate over the comments resulted in an ‘impasse’ implying nothing was resolved about the comments. The comments were described variously as ‘innuendo,’ ‘vague,’ ‘general,’ and as ‘the elephant in the room.’

Slip op. at 2-3 (quoting DuBay findings) (marks in original).

The CCA rejects dismissal with prejudice, reasoning:

Here, we determine the drastic remedy of dismissal with prejudice is unwarranted. Setting aside the  findings and sentence and authorizing a rehearing is the appropriate remedy to eradicate the UCI.  The UCI was not “so obvious or so egregious” or of a nature to adversely impact the essential
fairness and integrity of the military justice system when it was committed by two panel members  in contravention of the military judge’s instructions and without government knowledge or  ratification. Authorizing a rehearing affords appellant the right to receive a fair trial by an  impartial panel.

Slip op. at 5.

13 Responses to “The Army CCA reverses Schloff’s conviction because UCI tainted the deliberations”

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

    What does the last paragraph of the opinion mean?  That panel members should keep their mouths shut when it comes to UCI influencing their deliberations?  How about a paragraph encouraging panel members to come forward and disclosing when this happens?  Which will then discourage panel members from bringing it into deliberations.

  2. stewie says:

    If a panel member thinks “I need to be really tough on sex assaults for the good of the Army” but never communicates that during trial or to other panel members, then I mean ya, that’s preferable to the alternative of what happened here where the UCI was basically two panel members doing exactly that openly to the other panel members in an attempt to improperly persuade them.

  3. Charlie Gittins says:

    Shaking my head, ruefully.  I am afraid that this happens in far more cases than find their way to the appellate decisions.

  4. Scott says:

    Phil Cave says:
    July 17, 2015 at 5:45 AM  

    Having represented Chris at trial and through the appeal–I’d say it ain’t over yet–there’s something called Art. 66. 

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

    Scott,
     
    And here we are almost 3 YEARS LATER.  Justice delayed is justice denied.
     
    Panel members shouldn’t even be thinking they need to be “tough” on sexual assaults for the good of the Army.  Completely irrelevant.  It’s not good for the Army to think about this.

  6. Scott says:

    Absolutley not, it’s a totally irrelevant and inappropriate consideration.  And as Mr. Gittens said, who knows how often this goes on without appellate defense finding out about it. 
     
    Re the delay, it’s not only ~3 years post 62 decision, but also over 4.5 years post preferral from an allegation that is nearly 5 years old.  And when this goes back to the GCMCA for the PCF you can bet your bottom dollar he’s going to re-refer it, throwing whatever portion of the accused’s life he’s managed to salvage over the last 3 years back into chaos. 
     
    The impact of the process alone seems wildly disproportionate to an offense which, assuming it was committed at all (at this stage the legal presumption would be that it was not), even the “we can not seem soft or weak” panel concluded deserved no jail time. 

  7. Concerned Defender says:

    High time the military starts getting “rough” on UCI.  Lots of lives ruined and I’m unaware of any real consequences for those who essentially used the UCMJ as a sword to unlawfully ruin those lives…

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

    I am having a hard time seeing the fraud.  I don’t think I have never not gotten heart and lung stethoscope examination for medical stuff, depending on what the doctors are paranoid about at the time. Or what is legitimately going around at the time. It is Korea after all.  Lots of crud.  Lots of TB.  Lots of whatever to justify a stethoscope exam.

  9. Anonymous Military Person says:

    You know it’s factually a weak case if the senior panel member starts of the deliberations with, “well…we don’t want to seem weak on sexual assault…”

  10. Ed says:

    Is it going to be necessary to have an observer at every medical examination?

  11. Allan says:

    Just wondering.  In a sexual assault case is it now malpractice not to ask about UCI in voir dire of the judge and panel?  And should one not ALWAYS bring it up on the merits, given that the Army, Navy (and Marines), and Air Force (maybe the Coast Guard, too) have been implicated?

  12. Philip D. Cave says:

    Allan, whether or not it is IAC is different from is it a good idea– it’s a good idea.  Ask because you are worried about a fair trial for the client, not that you’ll get a fair hearing on appeal.  Some years ago, Coast Guard Chief Judge Felicetti came up with his own questions which he asked in the MJ’s general voir dire, a good start, Air Force Chief Judge Spath has something of a boilerplate instruction to the members about SHARP, “one drink,” etc., and Kyle has a few good questions also.
     
    I do think that UCI has metastasized in 120/93/sexual harassment cases so much so that they are in need of the Mayo Clinic.  By Mayo Clinic I mean a huge amount of mayonnaise slathered all over the ham to cover up the mold so the sandwich looks and tastes good (no disrespect to the MayoC).
     
    Cynicism aside, there are TC’s/SJA’s out there trying and doing the right thing in an individual case—Members as well.  For this, they should be applauded and supported.  You need not like them or be friends with them, but you should respect them.  In respecting them you respect what it is to be a lawyer, an officer; and a defender of the Constitution–as we say in the Navy, that’s Honor, that’s Courage, that’s Commitment.
     

    A value system is only as good as an organization’s standard-bearers allow it to be. If abused, a value system can actually harm the organization by incentivizing the wrong things at the expense of the right ones. Permitted to corrode, it can displace morality and ethics, becoming its own legitimized behavioral code that falls short of both.
     

    So says, John Q. Public: https://www.jqpublicblog.com/a-note-on-service-before-self/

  13. k fischer says:

    Allan, 
     
    I think it is malpractice to fail to file a motion to disqualify a Convening Authority who refers an Article 120/93 case to a GCM when the Article 32 PHO recommends dismissal of charges, particularly when the SJA does not permit defense counsel to interview the CA to determine if he is concerned about his career for failure to refer the case.
     
    If anyone would like a copy of said motion, then I would be happy to e-mail it to you as I have filed two of them since 2015.
     
    I do ask “does anyone here believe they must convict the Accused to send a message that the military is tough on sexual assault allegations.”  But, I find the question “Does anyone believe that false allegations of sexual assault are a problem in the military?”