Yesterday CAAF reversed convictions in three Hills trailer cases:

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to the Charge and Specification 3 thereunder and the sentence. The findings of guilty as to the Charge and Specification 3 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.

No. 18-0101/AF. U.S. v. Xavier L. Rice. CCA 39071. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN DECIDING THAT A PROPENSITY INSTRUCTION IN VIOLATION OF UNITED STATES v. HILLS WAS HARMLESS BEYOND A REASONABLE DOUBT BECAUSE IT DID NOT CONTRIBUTE TO THE VERDICT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 3, 4, and 5 of the Charge and the sentence. The findings of guilty as to Specifications 3, 4, and 5 of the Charge and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Specifications 3, 4, and 5 of the Charge and the sentence.

No. 18-0122/AF. U.S. v. Corey J. Campbell. CCA 38875. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT INCORRECTLY FOUND THAT A MILITARY JUDGE’S IMPERMISSIBLE USE OF PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence. The findings of guilty as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence.

The reversal in Robertson is particularly significant because the Air Force CCA found the error harmless beyond a reasonable doubt in a published decision. United States v. Robertson, 77 M.J. 518, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (analyzed here).

In Rice the CCA rejected a Government Division assertion that the error was waived, but found it harmless beyond a reasonable doubt because:

Under the particular circumstances of this case, where (1) the military judge did not provide a propensity instruction with conflicting standards of proof, (2) senior trial counsel only briefly mentioned propensity, (3) the Defense conceded the non-consensual touchings occurred, and (4) the military judge instructed on and senior trial counsel argued limited non-propensity uses of the abusive sexual contact offenses evidence, we are satisfied beyond a reasonable doubt that the military judge’s Mil. R. Evid. 413 instruction did not contribute to the verdict.

United States v. Rice, No. 39071, slip op. at 18 (A.F. Ct. Crim. App. Nov. 21, 2017) (link to slip op.)

Campbell was a judge-alone case and so more Hukill trailer than Hills trailer. The CCA issued two decisions in the case – the first was reversed by CAAF for further consideration in light of Hukill (noted here) – and the second opinion found the error harmless based on the strength of the prosecution’s case:

The propensity evidence played very little part in the Government’s case or argument. The senior trial counsel did make a brief mention that Appellant “prior to this assault, demonstrated over a period of months, a desire, a willingness, and a brazen capacity to fondle teenage girls without their consent.” This line of argument, while not particularly persuasive, does assert propensity. Much more persuasive was the Government’s direct evidence of Appellant’s acts, including the testimony of the victims and eye witnesses.

United States v. Campbell, No. 38875, slip op. at 7 (A.F. Ct. Crim. App. Dec. 13. 2017) (link to slip op.).

One Response to “CAAF reverses three Hills trailers from the Air Force (one particularly significant)”

  1. DCGoneGalt says:

    I’m thinking of writing a script where a Capt Martin McFly gets assigned to AF Government Appellate Division and meets up in DC with a mad scientist named Doc Brown and tries to use a flux capacitor on a Delorean to go back in time to erase the last ten years years.