Argument Preview: How bad is it when the prosecution invokes the Sexual Harassment/Assault Response and Prevention (SHARP) program, in United States v. Bodoh
CAAF will hear oral argument in the Army case of United States v. Bodoh, No. 18-0201/AR (CAAFlog case page), on Wednesday, November 7, 2018, at 9 a.m. (earlier than the normal 9:30). The court granted review of a single issue:
Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training
Private (E-2) Bodoh was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of sexual assault and one specification of assault consummated by a battery. He was sentenced to confinement for five years, reduction to E-1, forfeiture of $1,546.80 per month for 60 months, and a bad-conduct discharge.
Bodoh’s convictions involve sexual acts with the civilian wife of another soldier, at the home of the other soldier, while all three of them (plus a fourth person) abused alcohol and cold medicine. During voir dire the prosecution asked the members questions that referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program. The questions involved the effect of the SHARP program and whether the members could be impartial despite receiving SHARP program training. The voir dire questions did not draw an objection, a comment from the military judge, or a challenge to any member.
Bodoh testified in his own defense. He admitted that sexual acts occurred, but he claimed that they were consensual. During pretrial questioning by law enforcement, however, Bodoh did not admit to the sexual acts, and at trial his defense counsel asked him to explain that earlier omission. Bodoh responded that he was “very frightened when they told me that [the alleged victim] pulled the SHARP defense.” Gov’t Div. Br. at 13 (quoting record).
Once Bodoh mentioned the SHARP program, the prosecution ran with it. On cross-examination the trial counsel asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training he had received, eventually drawing objections from the defense that the military judge sustained. Later, during closing arguments, the trial counsel repeatedly referenced the SHARP program when arguing that there was no consent, that the alleged victim was vulnerable and incapable of consenting (due to the alcohol and cold medicine), and that her behavior during and after the sexual acts did not support Bodoh’s claim of consent. In particular, the trial counsel argued that the SHARP program demonstrated that the defense theory of consent was based on myths:
Also she’s fearful with everything he’s done and never having any consequences, never anyone doing anything to him, no one, the command, no one doing anything to him. She simply didn’t fight back. She froze. Everyone would wish she would have fought back. Everyone would wish she would have yelled and screamed. And those myths that [defense counsel] said aren’t that common anymore, that’s all that [defense counsel] cross examined her on. That’s all your Soldiers learn in the SHARP program every day about those myths. It’s not that common.
Appp. Br. at 10-11 (quoting record). Bodoh’s defense counsel did not object.
The failure of Bodoh’s defense counsel to object to the prosecution’s arguments that referenced the SHARP program as a basis for conviction is punished on appeal by application of the plain error test. The plain error test shifts the burden to Bodoh, requiring him to demonstrate that (1) there was an error, (2) the error is plain or obvious, and (3) the error caused material prejudice to a substantial right.
Bodoh’s brief asserts that the prosecution’s closing argument was prosecutorial misconduct for numerous reasons: the trial counsel misstated the law when arguing the meaning of consent (App. Br. at 16-17), the trial counsel used the SHARP program to vouch for the alleged victim and to disparage the defense (App. Br. at 18), and the trial counsel injected a command policy (SHARP) into the deliberations (App. Br. at 19). Precedent supports each of those reasons, so insofar as the record supports Bodoh’s claim of misstating the law, vouching, disparaging, and injecting command policy into deliberations, any error is probably obvious error.
But the Army Government Appellate Division doesn’t concede any error, arguing instead that the trial counsel’s “references to the Army SHARP Program, when considered in proper context, do not constitute misconduct.” Gov’t Div. Br. at 18. Furthermore, the Government Division blames Bodoh for the SHARP program’s role in the trial, emphasizing in its brief that the first reference to SHARP during the actual trial was by Bodoh himself:
after voir dire, the next person to mention “SHARP” was appellant himself on direct examination, where he claimed that Mrs. VH “pulled the SHARP defense,” insinuating that she was a liar and made a false rape allegation. (JA 403). After appellant raised the Army SHARP Program on direct examination, it was permissible for the trial counsel to explore appellant’s knowledge of the topic on cross-examination. He did so by questioning appellant about his personal experiences with Army SHARP training in an effort to counter the foreseeable defense claim of mistake of fact as to consent. . . .
It was appellant—not trial counsel—who affirmatively raised Army SHARP training two times during his case-in-chief. Indeed, the word “SHARP” came first from appellant’s mouth and then from his attorney’s. Appellant cannot use the Army SHARP Program as a sword at trial to discredit government witnesses and then as a shield on appeal.
Gov’t Div. Br. at 20-21.
Bodoh’s reply brief doesn’t address that argument, but I think CAAF will be curious about whether an accused’s reference to something give the prosecution the freedom to use that thing for any purpose. Bodoh’s mention of the SHARP defense seems to be a euphemism for a false rape claim made to excuse marital infidelity, while the prosecution’s questions and argument about the SHARP program seem to be an effort to either change the legal definition of consent or to influence the panel’s mindset as it applied that definition to the facts of the case. In the way of analogy, if Bodoh had made a passing reference to Nazism, could the prosecution respond by likening him to Hitler, his defense counsel to Goebbels, the alleged victim to a concentration camp prisoner, and the prosecution to the allied invasion of Europe? Could it do something similar but not so extreme?
The Government Division also argues that SHARP training is common knowledge that is a fair subject for argument:
the government is unaware of any clear view about the impropriety of referencing Army SHARP training in courts-martial. It has no history of “condemnation,” which, as this court said in United States v. Knapp, is a relevant factor when determining whether an error is plain or obvious. 73 M.J. 33, 37 (C.A.A.F. 2014). Given that training on the Army SHARP Program is mandatory for all Soldiers and the issue is frequently discussed during both government and defense voir dire, it is reasonable to consider it an issue of “common knowledge” previously discussed by this court. See Fletcher, 62 M.J. at 183.
Gov’t Div. Br. at 23. That argument invokes a standard instruction that military judges give to members: “In weighing and evaluating the evidence, you are expected to use your own common sense and your knowledge of human nature and the ways of the world.” Benchbook, Ch. 2-5-12. The instruction, however, is about weighing and evaluating the evidence actually admitted; it does not allow the members to substitute their personal knowledge for actual evidence. As CAAF explained in United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014) (CAAFlog case page), “requesting that members draw upon information not in evidence to make a specific conclusion” is improper.
Even if CAAF agrees that the prosecution’s references to the SHARP program during closing argument were obvious error, Bodoh’s convictions will nevertheless be affirmed unless the error actually affected the result. The Government Division argues that the convictions were based on the strength of the alleged victim’s testimony and the implausibility of Bodoh’s testimony (including inconsistencies between his pretrial statements and his in-court statements). Bodoh’s reply brief accused the Government Division of selectively reading the record:
the appellee tries to shift the focus to appellant’s pretrial statements. First, the government’s cumulative theory of nonconsent is not supported by the record. Second, at trial and now on appeal, the government attempts to parse appellant’s various pretrial statements out of context. Consistent throughout all of these statements is that PV2 Bodoh believed, or at least mistakenly believed, Mrs. VH consented to the sexual acts.
Comments to bolster, rehabilitate, and persuade the members through the Army’s SHARP training instead of the facts, or inferences therefrom, shift the focus to something other than admitted facts and military judge’s instructions. After emphasizing SHARP training throughout trial and closing arguments, the last statement the prosecutor left the panel with was, “You have the evidence. You have the common sense. You have the training. Find him guilty . . . .” (JA 804).
Reply Br. at 8-9 (pages unnumbered).