CAAF decided the Army case of United States v. Bodoh, __ M.J. __, No. 18-0201/AR (CAAFlog case page) (link to slip op.), on Wednesday, January 23, 2019. Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless, and it affirms the findings, sentence (with a correction), and decision of the Army CCA.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

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.

The granted issue involves three phases of the court-martial. First, during voir dire of the members, the prosecution asked questions that referenced the SHARP program. Second, when Bodoh testified in his own defense that the alleged sexual acts occurred but were consensual, the prosecution asked numerous questions about Bodoh’s understanding of the meaning of consent based on SHARP program training Bodoh had received, eventually drawing objections from the defense that led the military judge to give a curative instruction. Third, during closing arguments, the trial counsel repeatedly referenced the SHARP program (without objection from Bodoh’s defense counsel).

Judge Ohlson’s opinion for the unanimous CAAF repeatedly notes the defense counsel’s failures to object – and the associated application of the plan error test – but ultimately concludes that some of the references to SHARP training were not improper and the remaining references were not prejudicial.

CAAF first finds no error in referencing the SHARP program during voir dire. While one voir dire question invoked the program for reasons that CAAF finds unclear, the remaining questions “were designed to assess whether the members’ SHARP training would improperly influence their deliberations,” and that “is an appropriate line of inquiry.” Slip op. at 9.

The prosecution’s cross-examination of Bodoh, however, was not so appropriate. Nevertheless, Judge Ohlson explains that CAAF finds no prejudice:

First, the military judge sustained in a timely manner the defense’s objection, albeit on a different ground than the one raised by the defense. Second, the military judge ruled that trial counsel had misstated the law. Third, the military judge properly summarized the law . . . The defense never expressed dissatisfaction with these curative measures or sought additional measures. We therefore conclude that in light of the military judge’s curative measures, Appellant failed to establish that trial counsel’s improper questioning was prejudicial.

Slip op. at 9-10 (citation omitted). That holding applies the plain error test – where the appellant has the burden to show prejudice on appeal as a consequence of failing to seek correction at trial – even though there was an objection, seemingly because the trial objection was on a different basis than what was asserted on appeal. Nevertheless, considering the military judge’s corrective actions and the defense’s apparent satisfaction with those actions, it seems unlikely that the burden to show prejudice or harmlessness is dispositive in this situation.

Finally, Judge Ohlson explains that the closing argument did involve some impropriety, but that Bodoh “has not established material prejudice to a substantial right.” Slip op. at 11.

Nevertheless, the opinion contains a gentle reminder for prosecutors:

As can be seen, we have determined that the facts and circumstances in this case do not support a plain error determination. However, we once again find it necessary to state the obvious: “Counsel should limit their arguments to the evidence of record, as well as all reasonable inferences fairly derived from such evidence.” Burton, 67 M.J. at 152 (citation omitted) (internal quotation marks omitted).

Slip op. at 12 n.5.

Judge Ohlson concludes the opinion with a correction of the adjudged forfeiture of pay, eliminating the 80 cents because forfeitures must be adjudged in whole dollars. Slip op. at 12 n.7 (citing R.C.M. 1003(b)(2)).

Case Links:
ACCA decision
Blog post: CAAF grant
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

43 Responses to “Opinion Analysis: No prejudice from improper references to sexual assault training, in United States v. Bodoh”

  1. Vulture says:

    Amendment 7 says:
    In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
    .80 X 60 = 48
    Since you are so god damn concerned about the how right the panel is Judge Ohlson.

  2. Zachary D Spilman says:

    A court-martial panel is no jury.

  3. Isaac Kennen says:

    Concur.  A court-martial panel is no jury.  Unlike civilian accused persons, military members do not receive a panel picked by a disinterested party.  They are denied the right to have their guilt determined unanimously.  At at trial by special court-martial, they may be imprisoned despite lacking a panel of sufficient size to engage in meaningful deliberations.  And this all occurs without the benefit of having the trial shepherded by a truly independent officer of the Judiciary – instead, the military accused has to settle for an executive branch officer who is accountable to TJAG for his or her very livelihood.However, perhaps due to these patent structural infirmities, Congress chose to grant the service courts of criminal appeals the extraordinary power to review a court-martial’s verdict, and to enter an acquittal on appeal – which higher courts may not disturb – if, in the court of criminal appeals’ view, the verdict is factually insufficient.
    In ages of yore, there was a second counter-balance to the unreliability of military panel verdicts – the convening authority’s clemency power.  But, that safety valve against wrongful convictions has long been hammered shut and welded-over as a (over?)reaction to the Wilkerson case.

  4. Advocatus Diaboli says:

    Don’t believe a jury legally requires a unanimous verdict.
    Unlike civilians defendants, military accused can have a panel where the minimum education level is a bachelor’s degree, where the panel is still paid to be there and more likely to appreciate the importance of obeying the judge’s instructions and direction.  Where they all have at least one thing in common with the Accused, and in my experience, feel the weight and human cost of the responsibility they’re handed.  Do you have a data indicating our juries convict more often than civilian ones?
    If you have evidence that military judges are less independent than elected civilian judges, (where evidence has shown death penalties spike during election years), please present it.  How many recent recall efforts have removed a judge in the military after they made a publicly unpopular decision?
    If there’s a civilian jurisdiction where you think the pre-trial confinement, charging scheme, sentencing system, access to experts and access to free counsel is more defense-friendly than the military system, let me know.  I’d genuinely like to see the model you’re comparing it to in the US.  If you’re just comparing it to a platonic ideal, fair enough, but that’s a different complaint.
    Don’t get me wrong, there is *plenty* of room for improvement in the structure and law of the UCMJ.  The whole concept of UCI combined with the commander convening authority set up is a self-inflicted handicap.  But broad assertions about the miscarriage of justice should be backed up with a bit more depth.

  5. Nathan says:

    Both federal court and the District of Columbia come to mind as significantly more fair than the current military system.  But certainly many states are worse.
    Widenote: it’s unfortunate that it’s now impossible to comment here from a mobile device.

  6. John Marshall says:

    In a federal felony criminal case, i.e., where there is a right to a jury, a unanimous verdict of guilt is required.  All states but Oregon require (Louisiana recently overturned its non-unanimous jury rule, I believe) unanimous verdicts in state felony cases.  Oregon allows a 10-2 decision in some cases.  

    In two cases heard together in 1972, Apodaca v Oregon and Johnson v Louisiana, the Court considered the constitutionality of state laws that permitted criminal defendants to be convicted by less-than-unanimous votes.  (Oregon allowed convictions on 10 to 2 votes, while Louisiana went further and allowed convictions on votes of 9 to 3).  The Court, voting 5 to 4, upheld both state laws even though five justices clearly stated their beliefs that unanimity was required by the Sixth Amendment.  The odd result occurred because Justice Powell, concurring in both cases, concludes that the Sixth Amendment imposes greater requirements on the federal government than the Fourteenth Amendment, incorporating the basic Sixth Amendment right to a jury trial, imposes on the states.  Powell’s rejection of jot-for-jot incorporation was not supported in this case by any other justice. 

    In Ballew v Georgia (1978), the Court decided it had gone far enough down the slippery slope.  Justice Blackmun’s opinion for the Court, relying on a set of empirical studies showing problems with smaller juries, found that Georgia’s law allowing criminal juries of just five person violated the Sixth Amendment rights of defendants.  While concurring in the result, Justice Powell, joined by two other justices, reiterated that he did not think the Fourteenth Amendment imposed exactly the same requirements for juries on states that the Sixth Amendment did on the federal government.The Supreme Court visited the issue of jury size and unanimity one final time in 1979.  In Burch v Louisiana, the Court found Louisiana’s law that allowed criminal convictions on 5 to 1 votes by a six-person jury violated the Sixth Amendment right, incorporated through the Fourteenth Amendment, of defendants to a trial by jury.  If a jury is to be as small as six, the Court said, the verdict has to be unanimous.

    As far as the demand for “evidence,” should “data” be necessary if one can reason that there are inherent flaws in structure that are more likely than other structures to lead to unjust results?  But if you need evidence of the pitfalls of not having truly independent judges, how about the Air Force CCAs decision in US v. Vargas
    One doesn’t have to prove that military panels “convict more often than civilian ones” to criticize the system’s design.  Rather, one could simply note that non-unanimous juries are (1) more amenable to undermining Batson v. KY by disregarding minority voices, (2) less reliable than unanimous juries, and (3) contribute to wrongful convictions.  All of these propositions are supported by social science research.

  7. Advocatus Diaboli says:

    John Marshall,
    I’m genuinely interested in the social science research you say shows your three points.  What are you referring to?  Because the research I’ve read indicates that unanimous verdicts are often not nearly as unanimous as it seems–that those with reservations (or those who don’t believe BARD) will often go along with the group, like the conflict-averse social herd animals that we are.  That said, I do think it can help when you’ve got the one or two anti-social rogues who will stick to their guns and go full 12 Angry Men.
    But perhaps I’m skeptical of the virtues of that system, given that the jurisdiction that I’m in just recently had a hung jury, (where the large majority apparently went for acquittal, based on the observations of some attendants), and the Government has sent it forward to a new trial.
    Most clients I’ve seen who get to see both systems up close (e.g., those in PTC in a civilian facility), seem very grateful to
    As to Vargas, you’ve shown a removal of a judge, but it’s not clearly showing a judge who is failing their duty or acting dependent (aside from thinking that removal could be okay).  I also think you’re being a bit naïve if you think that we don’t forum/judge shop in civilian jurisdictions.  And in Vargas, despite no evidence of bias on the new judge, the review provided both a strong remedy for and deterrence to the attempts to remove the prior judge. 
    And I think you’re neglecting the extent to which judges in civilian practice are more likely, by a large margin, to have been prior prosecutors (with little to no defense experience), AND to view public/electoral pressure as pro-Government.  See my earlier point about spikes in death penalties. 
    And yes, I’d like to see some evidence for the allegations of gross injustice.  It’s one thing to suggest an “inherent flaw” will make military juries more racist or pro-government, but if the structure also provides more protections against the same, it’s fair to question it.  In either case, yes, the data seem relevant.
    As for federal court being more “fair”–how so?  Because in my experience, defendants are eager to cut a deal to stay in the military system over the federal system almost every single time.

  8. TC says:

    “As far as the demand for ‘evidence,’ should ‘data’ be necessary if one can reason that there are inherent flaws in structure that are more likely than other structures to lead to unjust results?”
    Well, yes, because one can reason a lot of things.  That doesn’t necessarily make them true.

  9. J.M. says:

    TC, I’m sure Chief Barry, Airman Wright, Airman Vargas, and Colonel Eller would disagree. 

  10. TC says:

    I’m sure they would. But just because there have been at least 4 unjust outcomes, that hardly means that the military is more unjust than other jurisdictions.  You can’t possibly believe that one couldn’t find travesties of justice in every jurisdiction. 

  11. Isaac Kennen says:

    There are certainly injustices committed in other jurisdictions.  
    Their occurrence and recurrence is well-documented and has been a subject of close study throughout our history, both before and after the revolution, here in the Americas and in Britain.
    The product of that intense study has been, fundamentally, an understanding that the government is an unreliable guarantor of individual liberties.  Judges and prosecutors, well-meaning as I am sure they all are, have proven themselves, time and again, to be poor repositories of the public’s trust.
    The only worthy protector of the public against governmental abuse in the criminal justice system is, and has always been, the public itself, via its juries.  
    And, as John Marshall notes through case cites, above, unanimity is not required for a group of citizens to be constitutionally characterized as a “jury.”  But, that case law establishes that if that group of deliberators are to be deemed sufficiently reliable to earn the “jury” moniker, then the further from unanimity they are permitted to get, the larger their numbers need to be.  
    Thus, it is well established in the Ballew and Burch cases from the late 1970s:  A panel of six members that is not required to be unanimous is too unreliable to pass muster in a criminal proceeding – not only under the right to a jury trial, but also under the due process clause.  A panel of five or fewer is too unreliable even if the verdict is required to be unanimous.
    Despite that hard-learned truth, we in the military continue to permit special courts-martial to incarcerate our fellows on a mere supermajority vote by three out of four members, all of whom are hand selected by the charging authority.  And this occurs in proceedings that enjoy practically no oversight by the Judicial branch of our government.  It is entirely an Executive branch affair, with little to no reliable safeguard to prevent the sort of corruption we see repeatedly occuring in the UCI cases that haunt CAAF’s halls.
    Some civilian jurisdictions may may be deficient in practice.  But the military court-martial panel construct, at least as regards special courts-martial, is structurally infirm.  

  12. John Marshall says:

    Diaboli, the ABA has consistently supported unanimous jury requirements based on the social science research I briefly summarized (and for other reasons).  If you google the issue you should be able to find the same material.

  13. Kettle Black says:

    John Marshall,
    Without commenting on the positions being staked, I don’t see why it would be on Diaboli to go search for the data supporting your position.  You proffered certain conclusions, thus you carry the ‘burden of persuasion’ as it were.  It should be you who backs up the conclusions with the data which, as you just said, is easy to find through Google.  Perhaps the information truly is widespread and uncontested as you claim, but you should please show it.  It would be unreasonable for me to claim the Earth is flat and then tell you the evidence is so obvious that you should just trust me or else find the data yourself.   

  14. Dabombdotcom says:

    John Marshall, completely agree with Kettle Black.  Please support your position or retract your remarks.  As for the substance of this issue, let’s not forget we’re talking about a system (military justice) that’s not designed to be equivalent to the civilian system.  Having decades of relative peace and wars of choice not survival have caused the MJ system to slide more towards civilian justice.  But when the proverbial poo hits the fan, we want commanders to be able to deal with scumbags quickly and decisively…so they can focus on putting little pieces of lead into our enemies.  

  15. stewie says:

    “As for federal court being more “fair”–how so?  Because in my experience, defendants are eager to cut a deal to stay in the military system over the federal system almost every single time.”
    Yeah, but are they doing that because they’ve done a robust examination of both judicial processes, or are they doing it for some other reason, like the safety or relative comfort of the two prison systems.

  16. J.M. says:

    Stewie, If a prison sentence is guaranteed, or very likely, then the safety and comfort of mil prisons would be a strong factor. I’ve toured the prison at Miramar and Mannheim (and had to deal with Soldiers in both) and it’s almost disgusting how easy the inmates have it. Better food, better living conditions and more creature comforts then the average Soldier (but probably not an Airman) would get downrange. It’s a major motivational factor for Leavenworth inmates to behave because disciplinary problems run the risk of being transferred into the fed prison, according to a blog written by a former Leavenworth inmate. 
    So, I think we can safely say that prison conditions and safety are better, for the inmate. But can anyone tell me how often Sharp training is brought up during voir dire in a civilian trial? Or how often does the judge have to instruct a jury member to disregard the 3-4 times a year briefing and information put out on subjects such as ‘One drink=no consent’ in a civilian court room? 
    I’ve been on court martial panel, sat in as a bailiff for another, and I’ve been the accused. There is a serious element of brainwashing that happens in the military. “They wouldn’t charge him if he wasn’t guilty” Senior officer to junior panel members: “I think he’s guilty, what do you think?”.
    “If you’re ACCUSED of a sexual assault, we will court martial you. I don’t fuck around.” That is an exact quote given by the RSS Commander, 11th ACR on Denim Day 2014 to his entire unit. 
    “Where is Smith? Where’s my rapist?” Said by the HHC 11th ACR 1SG in a troop formation in regards to an accused Soldier who hadn’t yet been through an Art 32. 
    “I don’t think you did it, but it’s a sex assault, we have to charge you” Said to me by my BN commander when I was accused.
    When is the last time a member of congress took a personal interest in seeing a person convicted in a drunken he said/ she said case outside the military?
    Now lets look at the case of the colonel who made remarks about “You’re coming to work for me next” to a TDC. Not held accountable. Lawyers in Germany who conspired to get a judge they didn’t like taken off from sex assault cases. Was that ethical? Was anyone held accountable?
    If Mike Nifong had been a military prosecutor he would have gotten a MSM (BSM if it had happened downrange), glowing ‘walks on water’ OER, and PCS’d out to bigger and better things before it all went sideways. 

  17. Dabombdotcom says:

    J.M., congrats on besmirching the names of military prosecutors across the globe.  Well done, ma’am.  Mike Nifong?  Really?  You seem to have a problem with prosecutors wanting to keep our fighting units clean and free from dirtbags.  The military’s mission is bigger than any one person.

  18. J.M. says:

    I’m sorry you pine for the days when a commander could hold a field trial and hang a guy to make an example and encourage his mates to charge through no mans land into German machine guns but the military deserves a justice system worthy of the men and women it serves. 

  19. Dabombdotcom says:

    J.M., yes, yes!  You definitely get it, and thank you for that.  And I accept your apology.  I’m not sure we should go back to hangings at the field commander level but it’s something we could discuss.  You are a breath of fresh air, ma’am.  

  20. Fisch says:

    Re: Mike Nifong
    I don’t know for sure that Nifong would have gotten an MSM if he were in the military, but one thing is for sure: He would NOT have gone to jail or lost his bar license.  
    Dabomb, what have you done to reel in an out of control TC or SVP?  The military mission is bigger than one person sounds like ten innocent men going to Leavenworth is worth making sure that one rapist gets convicted in the war on sexual assault.And, like most hypocrites, i guarantee you’d be crying injustice if you were the one person getting screwed for the bigger military mission.
    When the top lawyers in the Navy and the Air Force talk about how Congress is placing pressure on them to prosecute sexual assault or that they need to refer a bs case, otherwise Gillibrand will change the UCMJ, then that is no different than Mike Nifong hanging a bunch of Ivy League kids, so he can get reelected.  J.M.’s statement was on point.

  21. Tango Charlie says:

    Just to bring it back to what was an interesting discussion, here’s the paper I read in response to the “you look it up!” demand. It was admittedly very easy to find: FWIW, reading it did reaffirm my belief our current members system is wrong, though for the same reasons made earlier about the quality of our member pool, I don’t think we’re in as bad of shape as LA or OR.

  22. stewie says:

    “It’s almost disgusting how easy the inmates have it.”
    Why is that disgusting? One of the main faults of the American penal system is the overemphasis on prison being miserable, and underemphasis on individualized rehabilitation. I don’t need them eating bad food, or having trouble sleeping, or fearing they are going to be shanked or sexually assaulted, or not being able to watch TV for a few hours a day. I need them to leave a better person if possible who is less likely to commit crime.

  23. J.M. says:

    Stewie, I agree. However I also think that pizza parties and xbox privileges for an admitted drug dealer because of ‘good behavior’ is taking things too far. I saw that at Mannheim. 

  24. Dabombdotcom says:

    I still think the differing “missions” between MJ and civilian jurisdictions gets lost in all this.  Let WWIII break out and see how many folks are worried about PVT Snuffy’s due process rights.

  25. AFDCAO says:

    Dabombdotcom, I hope you are not involved in the justice system in any way.  I don’t know about you but my oath requires me to uphold and defend the constitution against all enemies foreign and domestic.  There’s no exception there for WWIII.

  26. stewie says:

    A drug dealer on a military base…so an adult getting drugs for other adults who want them? Eh, I’m not really spun up. You’ll have to throw in a child molester or something. 
    Person with lame screen name:
    I feel like you think you are saying something deep and “real.” Cutting through the baloney as it were.
    You’re not.

  27. Dabombdotcom says:

    Stewie, your comment about the drug dealer really shows your lack of understanding of what we’re trying to accomplish with our military and its justice system.  I don’t know about you, but I don’t want one of my marines all hopped up on the booger sugar while we’re conducting live-fire exercises.  That’s but one example of the very real, and very serious, threat of drug dealing—a minor offense in your book.  You probably don’t think small larceny cases are a big deal, either, yet I could give you some real-world examples of barracks thieves materially impacting unit cohesion and morale—two cornerstones of an effective fighting unit.  You are an ivory tower occupier, it appears.  Ever been down range?  If so, ever been outside the walls?  It’s all fun and games on the internets and in the rear with the gear…we can argue the niceties of procedure and such ’til the cows come home.  But at the end of the day, I want an effective military…not a “fair” one.

  28. stewie says:

    What a disappointing, boring cut and paste predictable response. My bingo card of buzzwords and concepts was filled even before the “did you even deoloy, bro?” part.

  29. Viking Six says:

    Dabomb, not sure if you’ve been around here before, but here’s lesson no. 1:  Stewie is always right.  Do not question him.

  30. Fisch says:


    Let WWIII break out and see how many folks are worried about PVT Snuffy’s due process rights.

    I like the cleverness of your statement, but strongly disagree with its substance and logic.  I would change that statement slightly to:
    Let WWIII break out and see how many folks are worried about PVT Snuffy having sex with PFC Susie after she had a few drinks, much to the chagrin of her fiance, SPC Cuck,  who was TDY and came back to to the rumor mill at the barracks, after which PFC Susie accused Snuffy of rape because she conveniently lost her memory  upon going to his barracks room after dirty dancing with him, making out with him, and doing a body shot of his rock hard abs.
    You sound like you are harder than woodpecker lips, Dabomb, but for some reason you have aligned yourself with third wave feminist #metoo SJW’s.  As I said before, I bet if you were sitting in the Accused chair  on a bs sexual assault allegation you would be crying the indignant tears of a hypocrite, rather than martyring yourself for the military mission which you’ve said “is bigger than one person.”

  31. Dabombdotcom says:

    Well you see, Fisch, therein lies the problem.  A reasonable person like myself isn’t going to be in such a situation b/c I don’t go out cavorting with other men’s wives or girlfriends as your hypothetical suggests.  And let’s face it, the ordinary, reasonable dude isn’t getting rolled up in these “BS” allegations as you call them…there’s a string of bad decisions that lead to these situations, most involving the excessive use of alcohol, which is, of course, a sin and brings into question one’s judgment from the get-go.  Again, you and your cohorts have the luxury of arguing about this stuff b/c we’re a badass superpower and we have the time and resources to dicker over whether PVT Snuffy’s room at the Shitbag Sheraton during pretrial confinement was one degree too cold and therefore constituted unlawful pretrial punishment.  But, at base, the MJ system is not the same as the civilian system for a reason, no matter how “unfair” you and others think that is.

  32. Wait, what? says:

    So you think a military member deserves to get charged with a crime they didn’t commit if they break one of God’s laws?  which you say is excessive drinking of alcohol?  Are you for real, or some sort of internet troll?

  33. Kettle Black says:

    I think it is hard to disagree with the general premise that the military system serves a distinct purpose from the civilian system.  The MCM Preamble sets it out pretty clearly.  The part; however, that gets lost is that the system only enhances discipline to the extent that it is perceived to be fair and valid.  The moment the system appears arbitrary or capricious, is the moment that it loses the ability to increase discipline and sharpen the lethality, to use Mad Dog’s wording, of the armed forces.  That is why, even in the face of dire conflict, due process still holds importance. 
    Is the system different from the civilian system?  Yes.  Should it be? I believe so, but it still needs to have sufficient protections in place to ensure a fair and accurate result.  If it fails to do so, then the whole purpose of the system is lost…or even becomes an active hindrance.

  34. Dabombdotcom says:

    KB, not arbitrary and capricious, just not dancing on the head of a needle.  Think hand grenade, not sniper rifle.  That’s what the UCMJ is designed for, overall effectiveness, not pinpoint accuracy.  There’s nothing arbitrary or capricious (much less both) about the marginal cases you and your cohorts love to bemoan, e.g., “Oh dear Lord, how on earth could PVT Snuffy possibly be charged with rape when all he did was go get slobberknockered with PVT Cheatonmyhusband at the local nightclub and then walk her back to her barracks room and innocently help her undress and take a shower.”  Give me a break.  Your post proves nothing and collapses upon itself.

  35. DCGoneGalt says:

    SHARP has led to DULL (Debating and Uselessly Litigating Lawyers).

  36. Anonymous says:

    “You’re a good guy, I didn’t believe the sexual assault charge anyway.” – STC to myself as she shook my hand after I was acquitted of that charge in 2017.
    That pretty much sums up the status quo of the military justice system since 2012. For those who claim state bars won’t investigate, suspend, or revoke a law license based on a complaint relating to military justice, why don’t you leave that for the state bar to determine, not your personal assumption. I’m sure Michael Cohen and Paul Manafort, attorneys, didn’t think they’d be in federal prison either.

  37. JetDriver says:

    Anonymous, that’s a horrible story.  One would think that a prosecutor must ‘believe’ that the person he/she is prosecuting is guilty, but is that actually the standard?  What is the ethical standard for a prosecutor in that situation?

  38. Wait, What says:

    From the Air Force Standards for Criminal Justice:
    Standard 3-3.9. Discretion in the Charging Decision
    (a) It is unprofessional conduct for a trial counsel to institute, or cause to be instituted, or to permit the continued pendency of criminal charges when it is known that the charges are not supported by probable cause. A trial counsel should not institute or permit the continued pendency of criminal charges in the absence of admissible evidence to support a conviction.

  39. a. hernandez says:

    During my second time as Chief of Crim Law it became clear early on that my SJA had barely any crim law experience.  I arrived at my duty station and was given two Article 15 turn downs and told to work with the TC to prefer charges.  I looked at the Article 15s and saw that the charges, as written, ‘failed to state an offense.’  I asked to examine the evidence (my policy as Chief of Crim Law was not to take to Article 15 anything that I could not take to a court martial if turned down), and I understood why the Article 15’s had been turned down; no evidence.  I asked the SJA who had written the Article 15’s and he told me he did and that he had told the CG we would proceed with the courts martial of the captains in question.  I took time to re-interview witnesses and gather additional evidence and there was nothing there.  I told my SJA that ethically, I could not prosecute those cases.  It happened one more time with another case he “promised” would be prosecuted (in the second case, even CID wondered why the insistence in moving ahead with the case).  I made the calls and told my TC’s that it they disagreed with me, to tell me, but if they had ethical issues with the cases I would take the hit.  I realize the SJA could have reacted worse than he did at the time of each incident, but I was happy my captains were left untouched.  It is hard to say no. 

  40. Kettle Black says:

    Anonymous/Jet Driver/Wait, What,
    While the STC’s comment was ill-advised, I don’t think it violated any ethical standard.  Believing that probable cause exists for the case to move forward is not the same as believing that the accused actually committed the offense.  The former is an objective standard, the latter is a personal opinion.  From the AF Rules, see also:
    Rule 1.2(b) – A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social, or moral views or activities.
    Rule 3.1 – A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so.
    It is one thing to believe probable cause does not exist and still proceed with a trial.  It is a different matter to believe that probable cause exists and yet also hold a belief that the accused could be innocent.  They are not mutually exclusive.  I dare say there are few cases where a prosecutor can be 100% certain that the accused is guilty.  That’s not the standard – it is whether the evidence supports a reasonable belief that the accused committed the offense.

  41. stewie says:

    I don’t know KB…if I thought the evidence was iffy for a conviction AND I didn’t believe the person actually did, I wouldn’t take it trial. OTOH, if I thought the person actually did it, but knew getting a conviction would be tough, I might very well take it to trial but I most certainly would not tell the accused “I didn’t think he did it” because if I didn’t think he did it, I’d be back in scenario A and I wouldn’t have taken the case to trial.
    Anytime I see someone starting talking about “sins” in a legal environment, I realize further intellectual interaction with said individual is like trying to talk quantum physics with my cat.

  42. Concerned Defender says:

    Commanding General aka Convening authority:
    * Directly participates in criminal referral. 
    * Overseas the SJA, which is buddy buddy rater to the Crim Law shop
    * Overseas directly or indirectly and certainly has command authority over the Crim Law shop and all TCs.
    * Overseas the entire base, including the Military Judge who could be summoned to see the CG in theory.
    * Hand picks all members to report to Panel duty, a pool of career-minded law-and-order types predisposed to disapprove and convict (as opposed to jury nullification or disagreement with the law or rules).
    * Commander by virtue of rank/base over the military defense shop.
    * Commander by virtue of rank/authority over accused.
    * In theory, most of the witnesses are probably subject to the CG as well.
    * In a system where showing up late, talking disrespectfully, or similar things was a federal crime.
    So everyone in the Court room sees the accused, and knows the CG/AU put him in that chair with these charges, overseas the Judge, the SJA, the prosecutors, the defense lawyers, and the panel. 
    If that’s not enough direct and implied UCI, the panel needs a simple majority to convict.
    If you were facing life in prison and would prefer that system, to a civilian jury picked at random who owe no loyalty to anybody and require 100% unanimity to vote to convict, you have a very interesting perspective.   As it’s often said, it’s hard to get 12 people to agree on pizza toppings…

  43. Fisch says:

    You said: 

    if I thought the evidence was iffy for a conviction AND I didn’t believe the person actually did, I wouldn’t take it trial. OTOH, if I thought the person actually did it, but knew getting a conviction would be tough, I might very well take it to trial but I most certainly would not tell the accused “I didn’t think he did it” because if I didn’t think he did it, I’d be back in scenario A and I wouldn’t have taken the case to trial.

    I agree with and respect that line of thinking.  I wish all SVP’s and TC’s thought that way.  I know of or have met too many who believe they have to take a case to trial to protect their Commander or Convening Authority  from Senator Claire McCaskill or protect the UCMJ from being overhauled by Senator Gillibrand, even though they have very serious misgivings about the Accused’s guilt.