Gallagher gets acquitted of the most serious charges and the NMCCA finds a Colonel’s conviction of sexual abuse of a child to be factually insufficient
I’m far behind on my coverage of the opinions from the CCAs and of court-martial news, but two big developments this week warrant mention.
First, the court-martial of Navy Special Operations Chief Edward Gallagher – that I previously mentioned here in connection with some questionable conduct by the prosecutor (leading to the prosecutor’s removal from the case) – ended this week, with Gallagher acquitted of everything except for one specification of violation of Article 134 for wrongfully posing for an unofficial picture with a human casualty. According to reports from Fox News and NPR, Gallagher was sentenced to reduction to E-6 (from E-7; in line with the prosecution’s request) and the maximum authorized confinement for four months and forfeiture of pay for four months. Due to pretrial confinement credit, however, Gallagher will not serve any additional confinement.
Second, a three-judge panel of the Navy-Marine Corps CCA issued a massive, 57-page, 21,000+ word opinion in United States v. Wilson, No. 201800022 (N.M. Ct. Crim. App. Jul. 1, 2019) (link to slip op.), in which it finds a conviction of sexual abuse of a child to be factually insufficient. Writing for a unanimous panel, Senior Judge Tang explains:
Carefully evaluating all of BP’s [the child] testimony and statements admitted at trial, we find that BP’s statements were fatally inconsistent and wholly irreconcilable. Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred. Faced with multiple descriptions of possible contacts—only some of which are consistent with guilt—we cannot find guilt beyond a reasonable doubt based solely on BP’s statements.
We next look to the other evidence admitted at trial for corroboration. We do not find evidence sufficient to overcome the infirmities in BP’s statements. There were no witnesses, physical evidence, or admissions of guilt by the appellant.
We next consider the testimony of several preeminent expert witnesses in the field of child psychology, maltreatment, and forensic interviewing. Most were presented by the government. The experts’ testimony assists us in understanding the limitations in children’s memories and children’s susceptibility to suggestion. But the expert testimony does nothing to resolve our genuine misgivings with the evidence. Rather, the testimony of the government’s expert witnesses only further diminishes the reliability of BP’s forensic inter-view and trial testimony.
Slip op. at 29 (emphasis in original). The analysis concludes:
We do not expect perfect consistency or flawless oratory from a six-year-old child. However, the government’s own experts indicated that, at least in July 2016, BP was capable of providing a narrative clearly describing her abuse but did not. And the government’s own experts found infirmities in the interview technique and a lack of clarity in BP’s statements. The expert testimony cannot reasonably explain the inconsistencies between all of BP’s statements.
. . .
We have carefully reviewed the government’s arguments on the evidence as they view it. We do not find that the proof is “such as to exclude . . . every fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.
Slip op. at 52-53.