A court of criminal appeals “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.” Article 66(d)(1) (2019) (emphasis added).

That requirement for a review of the factual sufficiency of a court-martial conviction is not only a unique power of the CCAs, but it is also a power that Congress recently reenacted, in the Military Justice Act of 2016 (moving the requirement from its former location, in Article 66(c)).

Reversals for factual insufficiency are, however, very rare. But last week, in United States v. Gilpin, No. 201900033 (N-M. Ct. Crim. App. Dec. 30, 2019) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reversed a conviction of sexual assault of a person who was asleep and otherwise unaware, concluding that the evidence – consisting primarily of the alleged victim’s lack of memory after overconsuming alcohol  – was factually insufficient to sustain the conviction.

Both the appellant and the alleged victim were midshipmen (students) at the Naval Academy. They had a sexual encounter in the Academy barracks (Bancroft Hall) that – if consensual – “was a serious offense that could get both of them kicked out of the Academy.” Slip op. at 3. Word of the encounter spread at the Academy in the following weeks, but as a consensual encounter (not a sexual assault). It was even joked about:

The company was holding a Christmas party. One of the events was a humorous reading of “Dear Santa” notes. These anonymously submitted notes asked Santa, on behalf of other midshipmen, for such things as “a reasonable sized nose” and the like. One note made clear reference to possible fraternization, or even sex in Bancroft Hall, between MIDN KS [the alleged victim] and MIDN Gilpin. The general gist of the anonymous note asked Santa to “get a room” for them.

Slip op. at 10. As a result, both the alleged victim and the appellant were confronted by their student leadership. Soon afterward, the alleged victim claimed that the encounter was nonconsensual because she was too drunk to consent, eventually testifying at trial:

Sir, I did not consent because I did not have the opportunity to consent because I was wasted.

Slip op. at 12 (quoting Record of Trial at 789). Yet the alleged victim also:

testified she did not remember anything at all that evening between being in the hot tub at the home of her friend’s sponsor-family and waking up the next morning, except for the “snapshot” of MIDN Gilpin’s face as she was on top of him in her bed. The only evidence of what happened in MIDN KS’s room is her single memory and MIDN Gilpin’s statements to his friends and later to MIDN KS that they had drunk sex in which she willingly participated.

Slip op. at 12. As a result, the CCA “must rely on MIDN KS’s single memory and the attendant circumstances of the case for proof of guilt.” Slip op. at 12.

It’s not enough proof.

Writing for the three-judge panel, Judge Stephens explains:

[W] are unable to rule out every “fair and rational hypothesis” other than guilt. MIDN KS could have just as easily been experiencing fragmentary blackout the entire time MIDN Gilpin was in her room. She would have not remembered anything other than her “snapshot” of being on top of him and MIDN Gilpin would have had no reason to know she was “otherwise unaware” the sexual activity was occurring. She also could have experienced “sleep inertia” after she woke up—which could have been at any time, including before MIDN Gilpin entered her room. If so, he could have reasonably perceived her as consenting.

It is also a “fair and rational hypothesis” that two young squad-mates at the Naval Academy, who one Government witness described as “close friends” and “friends,” had been drinking alcohol and made a very poor decision to have sex. During the trial, expert opinion confirmed that alcohol does indeed lower inhibitions.

In addition, it is difficult to consider the physical and practical aspects of the Government’s case without finding reasonable doubt. . . .

Regardless of what circumstantial evidence may exist, whatever the ex-tent of MIDN Gilpin and MIDN KS’s friendship was, whatever credibility problems either various Defense or Government witnesses had, or whatever expert testimony either side presented concerning sleep behavior, intoxication, or “counter-intuitive victim behavior,” we find the simpler explanation of ill-advised, drunken consensual sex a serious possibility that we cannot ignore—and certainly do not consider it a “fanciful doubt” or “ingenious conjecture.”

Even beyond the physical and practical aspects of the alleged crime, one simply cannot ignore the Defense theory that MIDN KS had substantial motives to believe she would not have consented to sex. It is entirely possible MIDN KS does not remember what happened, but MIDN Gilpin reasonably believed they had consensual sex. She was not doing well academically or physically at the Naval Academy. She just ended a relationship with a boyfriend, which, according to all witnesses, made her very upset. She drank alcohol to excess that evening. She knew her student chain of command was aware of an incident that could get her separated from the Naval Academy unless it was a sexual assault. And she apparently, wrongly believed MIDN Gilpin gave her chlamydia.

There is simply too much reasonable doubt associated with the evidence in this case. We are not charged with deciding “who to believe,” but simply whether the Government proved its case beyond a reasonable doubt. It did not.

Slip op. at 14-15.

32 Responses to “The Navy-Marine Corps CCA reverses a Naval Academy sexual assault conviction for factual insufficiency”

  1. MJLQ? says:

    Article 66 is the price that military prosecutors pay for non-unanimous verdicts.  But this was a military judge alone court-martial.  The appellate court is required to defer to the finder of fact who heard the evidence first-hand.  Thus, it is hard to read this decision as anything other than a shocking rebuke of the MJ’s professional judgement and an indictment of military justice as a whole. 
    Either MJ’s are experts in military law or they are not.  This is tantamount to a Ship’s captain running his vessel aground.  Will the JAGC take disciplinary action against the MJ concerned?  Or will that MJ be promoted to higher levels of responsibility after erroneously convicting a Midshipman despite (as decided by a panel of his peers) a supposed lack of evidence?
    Why have a trial at all if the appellate court will second guess and supplant its judgement for that of the finder-of-fact who heard the evidence first-hand?  This was not 3/4ths of a panel of lay members that barely convicted the appellant.  This was a presumable expert in military justice who weighed the evidence and credibility of the witnesses first-hand and determined that the Govt had proven its case BRD. 
    “Military” “Justice” has truly become an oxymoron.                      

  2. anonymous says:

    The MJ who sat alone as the court-martial now sits on the NMCCA. The three judges on the opinion have never sat the trial bench. 

  3. Zachary D Spilman says:

    The appellate court is required to defer to the finder of fact who heard the evidence first-hand. 

    Totally wrong. Factual sufficiency is a plenary review without deference, the CCAs have a clear mandate from Congress to conduct such a plenary review in every case, and unambiguous CAAF precedent requires a CCA to assess the evidence without regard to the findings below.

    Article 66 review of a court-martial conviction is “a plenary review” without deference. United States v. Chin, 75 M.J. 220, 222 (C.A.A.F. 2016) (CAAFlog case page). The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, [the CCA is personally] convinced of the accused’s guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987). In conducting that unique appellate inquiry, a CCA:

    applies neither a presumption of innocence nor a presumption of guilt. The court must assess the evidence in the entire record without regard to the findings reached by the trial court, and it must make its own independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt.

    United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (emphasis added). Put differently, “Article 66 of the Code requires [a CCA] to evaluate not only the sufficiency of the evidence but also its weight.” Turner, 25 M.J. at 325.

    Furthermore, while “a CCA clearly may not approve a legally or factually insufficient finding. . . CCAs can [also] assess the record and determine whether the findings and sentence ‘should be approved’ in the event of error even if the error did not rise to the level of requiring disapproval of the finding or sentence as a matter of law.” United States v. Nerad, 69 M.J. 138, 145-146 (C.A.A.F. 2010). In other words, not only must a CCA independently determine whether the findings in a case are “correct in law and fact,” but it must also independently determine which findings – if any – “on the basis of the entire record, should be approved.” Article 66(d) (formerly Article 66(c)).

    As such, your claim that a CCA “is required to defer to the finder of fact” is totally false.

    But – amazingly – that’s not even the worst part of your comment, MJLQ. The worst part is your question:

     Will the JAGC take disciplinary action against the MJ concerned?

    Article 37(a) (the #4 Military Justice Story of 2019) explicitly prohibits commanders from taking such action, or otherwise “censur[ing], reprimand[ing], or admonish[ing]” a military judge with respect to his findings. Your suggestion that the military judge in this case should be disciplined for his findings is exactly the kind of improper influence that would – if allowed – fundamentally undermine the integrity of the military justice system.

    It is, of course, fair to wonder how a military judge convicted the appellant in this case when the evidence is insufficient to sustain the conviction on appeal. One possible reason is an issue raised in the appeal but not addressed by the panel (because it was rendered moot by the finding of factual insufficiency):

    the trial counsel committed prosecutorial misconduct.

    Slip op. at 1. Whatever that misconduct was, perhaps it caused the appellant’s conviction on insufficient evidence. To apply your analogy about “a Ship’s captain running his vessel aground,” perhaps the military judge’s findings were the product of the prosecution taking him into treacherous waters with inaccurate charts.

    A better question might be what should happen to the trial counsel who – it seems – managed to bamboozle a military judge into convicting a Naval officer on scant evidence. After all, the prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).

  4. Charlie Gittins says:

    Great response Zack!  It bothered me what MJLQ said, but I just didn’t have the time or inclination to pull up the citations.  Glad you did.

  5. Fisch says:

    anonymous says:
    January 6, 2020 at 8:31 AM  

    The MJ who sat alone as the court-martial now sits on the NMCCA. The three judges on the opinion have never sat the trial bench. 

    Anon @08:31. 
    Could you please explain what your point is with this factoid?  If your point is that these three judges’ opinion regarding factual sufficiency are less worthy because they have never sat on a trial bench, then please keep reading.
    The alleged victim last drank prior to midnight when she puked.  She had numerous conversations in person and by text with numerous Mids and her ex-boyfriend.  She indicated that she was on top of the accused at one point of this sexual escapade.  She had a history of flirting with the Accused.  She was mad at her boyfriend.  She caught the clap from someone other than the Accused who she wrongfully blamed for giving it to her.  The Government’s experts corroborated the Defense.  She had conversations with others where she never stated that the Accused raped her.  She confided with a female who previously made a restricted report and got to stay at the Academy.  She was academically and physically struggling at the Academy. 
    Yet, the Accused was believed beyond a reasonable doubt to have snuck in her room, got into her bed six feet above the floor, undressed her, lifted her dead weight above him so that at some point she was on top, and penetrated her vagina.  And, she was so okay with that set of facts she didn’t make a restricted report right away.  No, she waited a couple of weeks.  The first time she accused him of doing anything wrong was when she wrongly believed that he gave her the clap.
    If this military judge who decided US v. Gilpin is now an NMCCA Appellate Judge, then that is quite troubling.  Because he, as well as the Government attorneys who tried this case, and the SJA who recommended this case be referred have a very unrealistic view of how things work in this world.   They also have a warped view of proof beyond a reasonable doubt.  And, unfortunately we will have a generation of military and appellate judges who came up through the period in the collective JAG Corps where being a Government hack who would indict a ham sandwich if a female said it raped her was rewarded and being a staunch defense counsel who called bs on what is happening with sexual assault prosecutions, or being a military judge who made decisions perceived as ‘defense friendly’ had adverse effects on career progression.
    Perhaps I am missing something, but I cannot fathom how this case got preferred, let alone referred, except for someone:
    (1) not knowing the facts of this case, which makes them ignorant and/or lazy;
    (2) knowing the facts of this case and believing this complaining witness’s story beyond a reasonable doubt, which makes them stupid; or
    (3) knowing the facts of this case and not believe the Accused was guilty BARD, but having an overwhelming concern as to what Congress might do if it did not, which makes them a coward.  See US v. Barry.
    This Mid got sentenced to 30 years in the brig.  The incident came to light in December 2016 during his second year.  The case was likely tried sometime in late 2017 or early 2018, which means that this Mid likely served two years of his sentence before his exoneration by the NMCCA. 
    If I were a current Navy TJAG, then I would probably look at this case to see what is wrong with the US Navy.  Because if you get the MJ who decided this case on an appellate panel with the MJ who convicted Barry, then this is only going to get worse.  

  6. Vulture says:

    It might not have in precedent value but this case implies that the sexual history of the AV can be introduced when their is a nexus with the sexual history of the Accused.  The chlamydia aspect was plainly a poke at the promiscuity of the Accused.  Along with uncharged misconduct, it’s probably good that this case got the review it did.  More fairness to the Accused.

  7. fisch says:

    Who is more promiscuous:  
    (1) a guy who doesn’t have the clap and denies having given a female the clap when accused by her; or
    (2) a female who has the clap and doesn’t know who gave it to her?

  8. Viper says:

    Really, really, does it matter who is more promiscuous? Talk about red herrings. 

  9. Allan says:

    does Gilpin get back in the Academy if he wants (assuming no government appeal and a reversal)?
    If so, it might be pretty awkward, given the length of the absence.

  10. Shawn says:

    Outstanding comments by Zack and Fisch.  The scary thing about this is that, except for the reversal on appeal, this guy would have remained incarcerated until 2047 just for being stupid (and male).  If Fisch is correct, the sentence bothers me more than the verdict.  I know it is not unusual, but it seems cruelly disproportionate to the alleged offense.

  11. Shawn says:

    CORRECTION:  OK, I read the slip op.  He was sentenced to 30 MONTHS and dismissal.  Totally appropriate for being so stupid.  Note to self:  Read slip op before commenting.

  12. Vulture says:

    Fisch and Viper.
    What bothers me is when a tendency to commit a crime can be shown by prior behavior, whether charged or uncharged, but a tendency to falsely accuse can’t be shown by prior behavior, promiscuous or otherwise.  Fairness to the Accused, particularly when just the idea of having sex in some specific location is scandalous enough.  (ahem… red herring)

  13. TC says:

    I don’t know which is worse, MJLQs’ comment that the MJ should face disciplinary action or Zack’s suggestion that the TC somehow did something wrong by prosecuting the case. To the former, different fact-finders can reach different answers to the question of whether there is reasonable doubt on the same set of facts. None of us saw the trial, and evaluating a cold record is hard enough, exponentially more so when all you have are the facts from the CCA opinion (which is written with an eye towards justifying the decision). Regarding the latter, the case made it past a 32, the CA saw fit to refer charges, and an MJ found the accused guilty, yet somehow the TC violated an ethical norm by zealously prosecuting the case? And that’s based on what, an assignment of error that wasn’t even reviewed? Or just an assumption that a conviction in a close case means the TC acted improperly? Some folks here are awfully quick to allege ethical violations despite a tremendous lack of facts.

  14. Advocaat says:

    Three cheers for NMCCA.  For similar cases that were not set aside and dismissed with prejudice, are counsel pursuing writs of habeas corpus in district court?  Do any of the services yet have a habeas unit or SME to assist counsel?  Has anyone reached out to the federal defender organizations or law schools where these clients are confined?  Those options were never discussed 20 years ago but now I wonder why not.

  15. Ed says:

    As to misconduct could someone post Gilpin’s Brief

  16. Tami a/k/a Princess Leia says:

    Gilpin was sentenced to 30 months, not 30 years.
    The services do not provide habeas corpus representation because it involves a civil lawsuit in federal district court.  However, there are civilian attorneys who file such lawsuits.
    Good for the NMCCA for doing the right thing, and good for Gilpin.  Fortunately, the NMCCA doesn’t seem to have a problem flexing its Article 66, UCMJ muscle.  I’m sure that, like Whisenhunt, there will be a big stink about this.  I’m also sure that, like Whisenhunt the female accuser, once a substandard midshipman, now a substandard officer, has been rewarded for her false report.

  17. MJLQ? says:

    Zach, you’re absolutely right to point out UCI as a bar to disciplining the military judge in this case. In rereading my post I realized that I failed to convey what an absurd result it would be to punish the MJ.  I meant to defend his/her prerogative to hear the evidence first hand and make an expert decision based on the facts and the law. 
    Regarding deference, I read “…and making allowances for not having personally observed the witnesses,…” in a different light than you.  The NMCCA gets a dead record and can’t even review the audio in these cases.  The finder-of-fact (MJ alone in this case) heard the evidence first hand and is in the best position to personally observe and judge the credibility of witnesses.  When that finder-of-fact is a presumed expert military judge rather than 3/4ths of a lay panel then those “allowances” should be given weight.  Otherwise, the court-martial is an empty ritual that should be passed up to the appellate court without findings for their awesome plenary review.  
    The heart of my post is: “either MJs are military justice experts or they are not.”  But what was meant as a cri de couer to competence and an invitation to Congress to examine Art 66 when it comes to MJ alone courts-martial ended up as a pitiful wail lamenting the state of military justice.  Thus, I rightly deserved the lashing received.       

  18. Zachary D Spilman says:

    I’m with you on the absurdity, MJLQ, of punishing the judge for unpopular findings. Punishing the trial counsel is equally absurd (as I’ve previously noted).

    But when it comes to “making allowances for not having personally observed the witnesses,” it’s important to realize that that’s not a phrase found in the statute. The statute as enacted in 1950, read:

    In considering the record it shall have authority to weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

    Article 66(c) (1951) (emphasis added). Today it says substantially the exact same thing:

    In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

    Article 66(d)(1) (2019) (emphasis added). To read that unambiguous grant of power as a requirement for some amorphous form of deference is pure fantasy.

    Finally, I wholly disagree with your contention that a military judge sitting alone is a better judge of the credibility of a witness than a layperson on a panel, and I think the Anglo-American tradition of trial by jury backs me up. So too does the fact that a three-judge appellate panel in this particular case unanimously found the evidence insufficient. Military judges are presumed to know the law; they’re not presumed to be infallible.

  19. NorthSider says:

    RE: does Gilpin get back in the Academy if he wants (assuming no government appeal and a reversal)? If so, it might be pretty awkward, given the length of the absence.
    My experience examining legal issues at the academies is dated, but I’ll offer this:
    – From what I can from the opinion, the accused was not charged with any barracks rules violations (i.e. sexual activity in the barracks, curfew violation, etc.). Nor was he apparently charged with any false statements surrounding such.
    – That said, I would not be shocked if USNA conducted an Honor Code hearing (if for example, he lied to someone about the incident), misconduct investigation, issued demerits, etc. Depending on any other demerits/issues the accused has had in the past, this could push him into expulsion territory. Again, just basing this on the slip opinion, so I have no idea.
    – also wouldn’t be surprised if the USNA, to make this go away, let the accused leave USNA without any further service obligation (couldn’t tell what year the accused was; generally, once you show up for the first day of classes for your third year, you are obligated to serve the 5-year ADSO. Failure to serve that ADSO (for stuff like expulsion) can sometimes result in recoupment action, in which the government forces you to pay back the cost of your education. This can result in lengthy periods of IRS garnishment.).

  20. Johnny Sack says:

    Northsider, if I were the exonerated mid at issue here, and the Navy tried to pull any of that shit on me, I would hire the best, most media-friendly attorney I could find and make it very, very painful and embarrassing for the Navy.

  21. Bill Cassara says:

    FWIW, I recently represented a West Point Cadet whose conviction and 18 year sentence were (rightfully) thrown out on FS grounds. He is back at West Point.

  22. MJLQ? says:

    Punishing a trial counsel for an unpopular result?  Yes.  But for prosecutorial misconduct?  I disagree.  But that is a non sequitur. 
    Again, I think reasonable minds can disagree on the Art. 66 statutory language as well.  You read it as an “unambiguous grant of power.”  I would say that “the Court MAY weigh the evidence, … , RECOGNIZING that the trial court saw and heard the witnesses.”  Emphasis added. 
    So one can quibble over my choice of the word “deference” before the first cup of coffee and characterize it as “pure fantasy.”  And I knowingly walked into this with my inartful lament and yes “words mean something.”  But I read the statutory language and its evolution (because I do see a difference in the phrasing of “shall” and “may”) to say that CCA’s must be chary when exercising their awesome* plenary review.  Otherwise (and in your reading I would contend) the last phrase would be surplusage.      
    My contention is that this “carte blanche” awarded by Congress and ratified by the CAAF (and its antecedent) should be reexamined in MJ alone cases.  Contra Claxton, 32 M.J. 159 (C.M.A. 1991).  Otherwise courts-martial have truly become Kabuki.   
    And though I rue complaining about a straw man I myself stuffed, my contention was not “that a MJ sitting alone is a better judge of the credibility of a witness than a layperson on a panel…”.  Rather, I posit that a MJ alone is better (and more deserving of deference) than 3/4s of a lay panel and the attendant horse trading and legal fiction about following instructions that come with them.     
    But lesson learned.  Drink Joe befoe (sic) commenting on CAAFLOG.  Or just don’t.  Mea culpa.      

  23. Vulture says:

    I am pretty sure Zach knows about Claxton.
    Point here being that more than one set of eyes provides a better possibility of multiple view points.

  24. TC says:

    If punishing the trial counsel is absurd, I’m curious what you meant by “a better question might be what should happen to the trial counsel?”

  25. Zachary D Spilman says:

    Rather, I posit that a MJ alone is better (and more deserving of deference) than 3/4s of a lay panel and the attendant horse trading and legal fiction about following instructions that come with them.   

    Your suggestion that a CCA is required to defer to the trier of fact isn’t novel, MJLQ. I’ve seen it briefed by an Appellate Government Division. Yet their argument (presumably written after coffee) was as specious as yours.

    You seem to believe that a military judge sitting alone, without the benefit of deliberation in a body or instructions from a neutral magistrate, and under the burden of legal training and experience, is more deserving of deference than a panel (that we’ll continue to call laypeople for now, even though they’re specifically selected because they’re qualified for that purpose) when it comes to weighing credibility and determining guilt, but you don’t offer any evidence or even a philosophical basis for that position. I offer you both for the opposite: juries are best and panels are next because (in part) they offer a diversity of viewpoints and they don’t have the burden of legal experience (which most people would agree undermines common sense), because our legal tradition acknowledges that, and because this case proves the point (with a panel of judges writing a 15-page opinion detailing why the solitary judge got it wrong).



    I’m curious what you meant by “a better question might be what should happen to the trial counsel?”

    Exactly what I wrote. In the hierarchy of questions, that might be a better one (than what to do about a military judge whose decision got reversed). Certainly, TC, you would agree that prosecutorial overreach is a far greater concern in the military justice system than judicial overreach.

  26. TC says:

    Zack, if “punishing trial counsel is equally absurd,” as you said above, I don’t see why the hierarchy of questions is at all relevant. And back to my original point, aside from an unreviewed assignment of error, what basis do you have to suggest there was prosecutorial overreach here?

  27. NorthSider says:

    RE: Johnny Sack says:
    Northsider, if I were the exonerated mid at issue here, and the Navy tried to pull any of that shit on me, I would hire the best, most media-friendly attorney I could find and make it very, very painful and embarrassing for the Navy.
    From my former foxhole, that would be a sound plan. I always thought holding the Honor Code stuff in reserve in the event of acquittal was not only dirty pool, but sent the wrong message to the student body about due process and the military justice system as a whole.
    Then again, as a non-academy grad, I never understood and still don’t understand the institutional enamor with the Honor Code system. 
    I’ll never forget what a former colleague who had successfully represented (in a legal assistance role) several academy students in Honor Code cases told me. An outgoing senior officer who oversaw a major academic department told my friend: “if you are gonna wear the uniform, you need to be focused on the academy mission and not on “wins” at the expense of that mission.”

  28. Cap'n Crunch says:

    About 15 years ago, I represented an AF Academy Cadet who had his case thrown out by CAAF 5 years after he was convicted.  He was convicted in his junior year.  He had managed, in the time that the case was on appeal, to finish his undergraduate degree, and had actually enrolled in law school.  The Air Force, at his request, honorably discharged him, and waived the service commitment and tuition repayment just to make it go away.  He could have gone back, but I think he just wanted to be done with the military and the entire ordeal left a pretty sour taste in his mouth — in discussing the option to go back (which he had), I remember him telling me that there was no way, with the passage of that amount of time, to put humpty dumpty back on the wall again.

  29. MJLQ? says:

    “…even though they’re specifically selected because they’re qualified for that purpose…”  Ahh yes. The ole Art 25 legal fiction.  Perhaps your statement would have been accurate to say that “they’re supposed* to be specifically selected because…”. 
    Call me a cynic (or just look at all the successful App D challenges to Art 25 practice) but rare was the Commander that I encountered giving serious thought to a court-martial panel.  Perhaps the Govt has been chastened and a court-martial questionnaire is no longer part of the standard check aboard package.  But I doubt it.  
    What then to make of the surplusage Zach?  If the “recognizing that the trial court saw and heard the witnesses” is not an admonition to defer then why add it at all?  Congress was just especially loquacious that day? 

  30. Zachary D Spilman says:

    I read the statutory admonition to “recogniz[e] that the trial court saw and heard the witnesses,” Article 66, as a requirement to “mak[e] allowances for not having personally observed the witnesses,” Turner, 25 M.J. at 325, and not as an implied requirement for deference to one (but not the other) kind of finder of fact.

  31. Tami a/k/a Princess Leia says:

    The fallacy with presuming the military judge knows and applies the law correctly, in reviewing legal and factual sufficiency of the evidence, is that there is no presumption of guilt or innocence on appellate review.  Applying a presumption that the military judge knows and correctly applies the law requires an appellant to prove otherwise, which is contrary to the law.  And in this case, it seems obvious the judge did not correctly apply the law in this case.
    Military judges are not infallible, they make mistakes, and they are just as susceptible to the indoctrination as panel members that when a so-called victim claims sexual assault, they are to be believed, and to hold them responsible for their “bad” choices is “victim blaming.”  Obviously the SHARP and POD people continue to hold heavy sway in preaching that regretted sex is sexual assault, that men are to be convicted because they’re men, and women have no responsibility for their actions whatsoever (as somehow that’s “empowering”).
    Additionally, by mandating a mandatory “minimum” of a dismissal, Congress has guaranteed appellate review.  Congress has gotten exactly what it wanted–appellate review and overturning convictions in BS cases.  The service courts are the first line of defense in getting rid of BS sexual assault convictions.  Kudos to the NMCCA for flexing its muscle.

  32. CAPT X says:

    The right outcome, I think.  Always good to see a CCA using that awesome plenary power of de novo review.  Proof that our system still works.

Leave a Reply