Yesterday CAAF granted review in this Air Force case:
No. 18-0372/AF. U.S. v. Paul D. Voorhees. CCA 38836. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
I. WHETHER THE AFCCA ERRED IN FINDING NO PLAIN ERROR DESPITE TRIAL COUNSEL’S ARGUMENT ON FINDINGS THAT PERSONALLY ATTACKED APPELLANT AND TRIAL DEFENSE COUNSEL, COMMENTED ON APPELLANT’S SILENCE, EXPRESSED HIS PERSONAL OPINIONS, BOLSTERED HIS OWN CREDIBILITY, VOUCHED FOR GOVERNMENT WITNESSES, SPECULATED, AND MADE REFERENCE TO FACTS NOT IN EVIDENCE.
II. WHETHER THE AFCCA ERRED IN FINDING THAT THE SPECIFICATIONS ALLEGING VIOLATIONS OF ARTICLE 133, UCMJ, STATED AN OFFENSE DESPITE THE FACT THAT THEY LACK WORDS OF CRIMINALITY OR A MENS REA.
III. WHETHER PLAIN ERROR OCCURRED WHEN THE MILITARY JUDGE FAILED TO INSTRUCT THE MEMBERS THAT MENS REA WAS AN ELEMENT OF AN OFFENSE UNDER ARTICLE 133.
Briefs will be filed under Rule 25.
In 2015 Major Voorhees was convicted of one specification of sexual assault by causing bodily harm and five specifications of conduct unbecoming of an officer and gentleman, and sentenced to confinement for three years, total forfeitures, and a dismissal. On appeal the following year, in an opinion available here, the Air Force CCA found the sexual assault conviction factually insufficient and ordered a sentence rehearing. At the rehearing in 2017 a military judge sentenced Voorhees to a reprimand and to be dismissed. Then, earlier this year, the CCA again affirmed the findings of conduct unbecoming, and it affirmed the revised sentence, in an opinion available here.