CAAF ruled 3-2 in United States v. Ellerbrock that a military judge abused her discretion in denying an accused the ability to cross-examine his accused victim about an extramarital affair she had had two-and-a-half years before.

The alleged victim, CL, had a long-term affair with a male roommate in Jacksonville, Florida, while her husband was stationed at Fort Stewart.  CL’s husband, who described himself as “hot tempered,” kicked down the door of his wife’s lover.  Nevertheless, at the time of trial, both CL and her husband described their marriage as good.

CL’s husband deployed, asking a family friend, Specialist Jackson, to look after his wife.  After CL put her child to bed one night, and while Jackson was at the home, CL consumed three to four shots of gin.  She had also been taking Xanax and Effexor. 

Several other friends came over, including appellant.  CL continued to drink.  Jackson and the other friends (except Appellant) left the house.  Eventually the friends went back into the apartment where they heard the bed squeaking and people moaning.  The lights came on to reveal CL and appellant have sex.  Someone told appellant to get off CL.  Appellant allegedly responded by telling the friends to leave because he was “almost done.”  The friends left.  Witnesses gave conflicting testimony as to the CL’s apparent level of intoxication and her reaction when the lights came on.  The next morning CL remembered having sex with Appellant, stating something to the effect of, “I can’t believe I did that” and “I fe[el] horrible.”

The defense sought to cross-examine CL about the prior affair, arguing that this information showed that CL had a motive to lie about having consensual sex with appellant.  CL wanted her marriage to continue, and, according to the defense, the previous incident, and her husband’s reaction, shed light on why CL might claim she had been raped.

The military judge excluded testimony about the previous affair under M.R.E. 412, finding that the probative value of the evidence did not outweigh its dangers to CL’s privacy interests, and that the dangers of unfair prejudice substantially outweighed the probative value of the evidence.  ACCA affirmed. 

CAAF reversed, in a fact-intensive opinion that has, in my mind, hints of factual sufficiency doubts throughout; reading the opinion, the case seems like the kind of sexual assault not usually won by the government.  The court held that it was a ”fair inference” that a second consensual sexual dalliances would be more damaging than one, and that the defense should have been able to explore the potential effect of the first affair on CL’s willingness to tell the truth.  

The case, in my view, doesn’t mark any sea changes in M.R.E. 412 law; it seems to be an as-applied opinion in a case with a fact pattern that will ring familiar to anyone who has deployed with a military unit a few times.   

Judges Baker and Ryan dissented.

CAAF’s opinion in Ellerbrock is available here.  The court rules for the defense 3-2.  Judge Stucky wrote for the majority.  Judge Baker and Judge Ryan dissent separately.

I’m under the gun again tonight, so further commentary about the just-completed term will have to wait for another day.

Available here.  Judge Ryan wrote the majority opinion.  Judge Baker, joined by Judge Stucky, concurred in part and dissented in part.

The majority held that not only the cover memorandum, but also the specimen custody document, “were plainly and obviously testimonial.”  CAAF reversed NMCCA’s holding and remanded for a harmless error determination.

CAAF states:

Where, as here, an accused’s sample tests positive in at least one screening test, analysts must reasonably understand themselves to be assisting in the production of evidence when they perform re-screens and confirmation tests and subsequently make formal certifications on official forms attesting to the presence of illegal substances, to the proper conducting of the tests, and to other relevant information.

Thus, “recent case law from this Court and the Supreme Court requires an examination of individual statements that goes beyond Magyari.”

CAAF concluded that it was “plain and obvious error to admit the specimen custody document certification.” CAAF explained:

This certification is a formal, affidavit-like statement of evidence that not only presented the machine-generated results, but also indicated “that the laboratory results . . . were correctly determined by proper laboratory procedures, and that they are correctly annotated.” See Bullcoming, 131 S. Ct. at 2715 (holding that the out-of-court declarant “certified to more than a machine-generated number” when the statements included affirmations regarding accuracy and compliance with laboratory protocol).  Such a formal certification has no purpose but to function as an affidavit. Because the declarant, “R. Flowers,” was not subject to cross-examination, admission of the specimen custody document plainly and obviously violated the Confrontation Clause.

The majority held that “we do not find that the stamps, signatures, and other notations on the chain of custody documents and data review sheets, or the results report summary are ‘plainly and obviously’ testimonial in the context of review for plain error.”  But the majority cautioned that “[a]n objection at trial, followed by more extensive development of the evidence and argument on its nature, might
tip the balance the other way in an appropriate case.”

Unfortunately I’m under the gun big time tonight, so either one of my CAAFlog colleagues will provide further details or I’ll offer more thoughts about the opinion later in the week.

US v. Baker, No. 11-6007/AR is available here.  US v. Lusk, No. 11-0166/AF is available here (our fearless leader was one of the counsel for the appellant).  Lusk is a per curiam decision remanding the case to the Air Force Court for a new decision addressing all aspects of Blazier and the instructions in the case.  Baker reverses the Army Court’s reversal of a military judge suppression finding in a purported “show up” photo lineup.  Erdmann, Effron, and Stucky in the majority and Baker and Ryan in dissent.

That leaves only Ellerbrock (Mil. R. Evid. 412) and Sweeney (application of Melendez-Diaz) to be decided.

Available here.  United States v. Gaddis, __ M.J. __, No. 10-0512/AR (C.A.A.F. Aug. 10, 2011).  Judge Ryan wrote for the majority, joined by Judges Erdmann and Stucky.  Chief Judge Effron concurred in part and concurred in the result.  Judge Baker joined Chief Judge Effron’s separate opinion.  CAAF affirmed the outcome from ACCA.

While rejecting a facial constitutional challenge to MRE 412, the majority opinion is critical of its language, which creates a danger of excluding required evidence:

We hold that the balancing test in Military Rule of Evidence (M.R.E.) 412(c)(3) is not facially unconstitutional. However, its current iteration — which purports to balance the “alleged victim’s privacy” against the probative value of the evidence — is needlessly confusing and could lead a military judge to exclude constitutionally required evidence. The “alleged victim’s privacy” interests cannot preclude the admission of evidence “the exclusion of which would violate the constitutional rights of the accused.” See M.R.E. 412(b)(1)(C). We interpret M.R.E. 412 to preclude the exclusion of any constitutionally required evidence.

The majority reasons:  “Although Congress has authorized the President to prescribe the rules of evidence for courts-martial, M.R.E. 412 cannot limit the introduction of evidence that is required to be admitted by the Constitution.”  Gaddis, No. 10-0512/AR, slip op. at 10-11 (internal citation omitted.  The majority noted that in some cases, M.R.E. 412 could result in an unconstitutional limitation on defense evidence:  “The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy.  In those circumstances, the test would be unconstitutional as applied.”  Id., slip op. at 11-12.

The Court explained that “because of the confusing structure of M.R.E. 412, the test has the potential to lead military judges to exclude constitutionally required evidence merely because its probative value does not outweigh the danger of prejudice to the alleged victim’s privacy, which would violate the Constitution.”  Id., slip op. at 12.  The majority continued, “And the test is a problem of our own devise, since it was enacted in response to this Court’s decision in Banker.”  Id.; see United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004).

In what appears to be an invitation to the President to revoke the 2007 amendment to M.R.E. 412, the majority continued, “M.R.E. 412 cannot limit the introductino of evidence required by the Constitution — although the text of the rule seems to permit such a limitation.  And the explanation in Banker — suggesting that balancing constitutionally required evidence against the privacy interest of the victim before admitting it is necessary to further the purpose of the rule — is simply wrong.”  Gaddis, No. 10-0512/AR, slip op. at 17 (internal citation omitted).  “The purposes of M.R.E. 412 are served by the rule itself, which prohibits all evidence of an alleged victim’s sexual behavior or predisposition unless, for example, it is constitutionally required.”  Id., slip op. at 17-18.  “If after application of M.R.E. 403 factors the military judge determines that the probative value outweighs the danger of unfair prejudice, it is admissible no matter how embarrassing it might be to the alleged victim.”  Id., slip op. at 18.  “Likewise, if a military judge determines that the evidence is not constitutionally required, the military judge must exclude the evidence under M.R.E. 412 — regardless of how minimal the alleged victim’s privacy interest might be — because it does not fall under an exception to the general rule of exclusion.  At best the balancing test under M.R.E. 412(c)(3), as currently written, is a nullity with respect to the constitutionally required exception set out in M.R.E. 412(b)(1)(C); at worst it has the potential to cause military judges to unconstitutionally exclude evidence that is constitutionally required to admit evidence that is not.”  Id.

The majority went on to hold that the evidence that the defense sought to admit in this case wasn’t constitutionally required and was thus properly excluded under M.R.E. 412.

A divided CAAF held yesterday that a charge and specification of adultery that did not specifically allege a prejudice to good order and discipline or that the conduct was service discrediting failed to state an offense.  The holding calls into question convictions in at least 45 Fosler trailer cases and, according to a dissenting and worried Judge Baker, potentially even convictions in cases long considered final.

Fosler began, as many adultery cases do, as a contested rape case.  The accused was a lance corporal and a drill instructor at the Rota, Spain NJROTC when he was accused of sexually assaulting a sixteen-year-old high school student.  The case ended, as many of these cases do, with an acquittal of the Article 120 charge and a conviction for adultery.  At the conclusion of the government’s case in chief, the accused moved to dismiss the adultery charge (mistakenly under R.C.M. 917 rather than R.C.M. 907) for failure to state an offense.  The military judge noted that the specification was based on the sample specification in the Manual and denied the motion.  She instructed the members that they could convict the accused if they found the conduct to be prejudicial to good order and discipline or of a nature to bring discredit to the service. 

Judge Stucky, joined by Judges Erdmann and Ryan, acknowledged at the outset that longstanding precedent permitted omission of the terminal element from Article 134 specifications, and that the sample specifications in the Manual typically do not contain the terminal element.  Changes in the legal landscape, beginning with the Supreme Court case of Schmuck v. United States, 489 U.S. 705 (1989), and continuing through the Jones line of cases involving pleadings and LIOs, drove the break from precedent.  Both the majority and the dissents framed the decisional issue the same way: does the language in the sample specification necessarily imply the terminal element of Article 134 adultery?  To decide if the sample specification implied the terminal element, the court considered the language of wrongfulness, the possibility that adulterous conduct itself implies the terminal element, the force of historical practice and pleadings, and R.C.M. 307′s general provision that elements may be necessarily implied, asking if each, alone or together, implied the terminal element of Article 134.  The majority also took into consideration that the terminal element in an Article 134 charge may be met in three distinct ways; that an act might be prejudicial to good order and discipline without being service discrediting, and vice-versa.  The majority found that the sample specification does not necessarily imply the terminal element, and dismissed the charge and specification for failure to state an offense.

Chief Judge Effron and Judge Baker considered essentially the same factors as the majority, but each dissented.  Judge Baker called the holding a potential “sea change in practice and law” and correctly pointed out that other charges, such as larceny, traditionally rely on pleadings much less definite than the sample specification for adultery.  Judge Baker took the majority to task for leaving so many questions unanswered:  What will happen to the host of Fosler trailers (45 by Judge Baker’s count)?  What about guilty plea cases, since an accused can’t be convicted of a specification that isn’t an offense?  How could waiver apply?  Will this lead to several decades worth of cases being revisited on error coram nobis?  And, almost breathlessly, “[h]as Article 134, UCMJ, lost its capacity to serve as a  . . . fair and predictable tool to uphold good order and discipline? . . . Is Parker v. Levy . . . still good law?” 

Well.  I don’t know about all that.  But he’s right to marvel at the venerable century oaks of case law precedent uprooted and tossed aside, red Lexis stop signs twisted around their trunks.  And who knows what’s left of the 45 Fosler trailers.  (I know.  I should stop.)   I’m not sure it’s going to be total devastation, though; the guilty plea trailer next door to Fosler could miraculously emerge unscathed, in spite of it all.  My guess is that the government will plead the terminal element from now on–it’s already been recommended out of caution–and our practice will come back down more or less on its foundation.  Remember Prather?  You might not.  Lots of broad language that kind of blew itself out in Medina.  Time will tell.

Here’s a link to the opinion.  United States v. Fosler, __ M.J. __, No. 11-0149/MC (C.A.A.F. Aug. 8, 2011).  The Kabul Klipper says, “It’s like a tornado through a trailer park.”

Judge Stucky wrote for the majority, joined by Judges Erdmann and Ryan.  Chief Judge Effron and Judge Baker dissented.

A soldier with 1,700 images of child pornography on his computer, a “record of DUIs,” and a previous criminal trespass conviction isn’t going to get the benefit of the doubt too often after a R.C.M. 1001 free-for-all.  Just ask SFC Eslinger, who gave his wife his computer password “as a sign of trust.”  When she found child porn, she turned him in.

After being convicted by members, the accused called three witnesses who opined that there was still a place for him in the Army.  The government rebutted this testimony with the testimony of no fewer than five witnesses, three of whom both ACCA and CAAF had no problem finding lacking a proper foundation for an opinion of SFC Eslinger.  But the testimony went largely unobjected to, and CAAF was unwilling to find plain error or prejudice in the three-year confinement and dismissal sentence.

CAAF noted that when the government rebuts “retention evidence” it can walk a thin line between rebutting the accused’s evidence on one hand, and urging the appropriateness of a punitive discharge on the other.  CAAF also noted that it is important for the government to avoid exerting unlawful command influence when command leadership figures are used to made the case.      

Judges Erdmann and Effron dissented, stating that they lacked confidence that the members would have so severely punished the accused, an 18-year career soldier, absent the foundationless opinions of the government witnesses.

CAAF has released its opinion in Eslinger, here.  It’s a 3-2 opinion written by Judge Baker, affirming ACCA.

CAAF published its opinion in U.S. v. Zarbatany, __ M.J. __ (CAAF, 2011) (No. 11-0165/AF) yesterday, resolving the following issues:

I. WHETHER THE AFCCA ERRED IN FINDING THAT ILLEGAL CONFINEMENT CREDIT, AWARDED PURSUANT TO ARTICLE 13, UCMJ, CANNOT BE APPLIED TOWARDS A PUNITIVE DISCHARGE.

II. WHETHER THE AFCCA ERRED BY FAILING TO GIVE MEANINGFUL RELIEF WHERE APPELLANT HAD 445 DAYS OF ILLEGAL PRETRIAL CONFINEMENT CREDIT IN EXCESS OF HIS APPROVED SENTENCE TO CONFINEMENT.

(Note: The AFCCA affirmed the findings and sentence in a per curiam opinion in Oct, 2010).

The Court of Appeals found that R.C.M. 305(k) does not limit the remedies available under Article 13, UCMJ, and that meaningful relief for illegal pretrial confinement is required, and returned the case to the CCA for a new Art. 66 review to determine if the circumstances warrant additional sentence relief.

Read more »

CAAF published its opinion in U.S. v. Schuber, __ M.J. __ (CAAF, 2011) (No. 11-6002/AF) yesterday, affirming the AFCCA’s reversal of the trial judge’s dismissal of the charges for a speedy trial violation under Article 10, UCMJ.

Factual Background

Airman First Class Schuber participated in a random urinalysis on 1 December 2009, testing positive for meth/amphetamine. He provided a second sample on 21 December 2009, which tested positive. Two additional samples submitted on 26 January 2010 were also positive.

On 10 February 2010, Schuber was placed in pretrial confinement. He provided two additional urine samples, both of which tested positive on 26 February 2010. Charges were preferred on 10 March 2010.

Read more »

CAAF’s opinion in United States v. Phillips, No. 11-0148/MC , is here.  Judge Stucky wrote for the majority.  Judge Ryan, joined by Judge Erdmann, dissented.

The case concerns the manner in which the prosecution proves that service discrediting element of an Article 134 offense.  Here’s Judge Stucky’s BLUF synopsis of the holding:

We hold that evidence that the public was actually aware of the conduct is not necessarily required. Furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces.

The opinion elaborates:   “Whether any given conduct violates clause 1 or 2 is a question for the trier of fact to determine, based upon all the facts and circumstances; it cannot be conclusively presumed from any particular course of action.”

Addressing Article 134(2) specifically, the majority observed: 

The focus of clause 2 is on the “nature” of the conduct, whether the accused’s conduct would tend to bring discredit on the armed forces if known by the public, not whether it was in fact so known. The statute, which requires proof of the “nature” of the conduct, does not require the government to introduce testimony regarding views of “the public” or any segment thereof. The responsibility for evaluation of the nature of the conduct rests with the trier of fact. . . .  [T]he degree to which others became aware of the accused’s conduct may bear upon whether the conduct is service discrediting, but the statute does not establish a requirement that the accused’s conduct must in every case be in some respect public knowledge.

The majority remanded for NMCCA to conduct a new factual sufficiency review in light of the standards it articulated.

In dissent, Judge Ryan concluded that “[b]ecause the Government failed to present either evidence or argument on the element of service discredit and the military judge may have applied pre-Miller law that some conduct is per se service discrediting, I would set aside the sentence and the finding of guilty on the child pornography charge and authorize a rehearing.”

Martinez arises from a strange set of facts.  A supervisory judge sat in the gallery while the trial judge conducted his first trial, which was a guilty plea case.  On at least two occasions, the supervisory judge communicated with the trial counsel.  The supervisory judge “was observed passing a note to the trial counsel, apparently informing him of a perceived deficiency in the colloquy” between the trial judge and the accused.  On another occasion, the supervisory judge asked the TC to request a recess, which the TC did.  When the trial judge then went into his chambers, the supervisory judge followed.  The supervisory judge was also seen entering the trial judge’s chambers during deliberations.

The defense raised the issue of the supervisory judge’s conduct post-trial and requested clemency as a result.  At the SJA’s recommendation, the CA agreed with the clemency request.

In a majority opinion by Judge Erdmann, CAAF today held that the supervisory judge’s conduct was improper but didn’t result in prejudice.  Judge Ryan concurred in the result.

The majority held that the supervisory judge’s “communications with the trial counsel concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters and it was plain and obvious error for her to initiate those ex parte communications with trial counsel during the trial.”

The majority also concluded:

A reasonable person knowing all the circumstances would have observed [the supervisory judge] privately concurring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations.  [The supervisory judge's] course of conduct under the circumstances created an appearance that neither she nor [the trial judge] was impartial.

CAAF, however, found no material prejudice to the appellant’s rights, relying in part on the post-trial clemency granted at the defense’s request.  CAAF also concluded that there was no need to reverse the outcome to preserve the public’s confidence in the military justice system.

Concurring separately, Judge Ryan questioned why the supervisory judge’s improper conduct would require the trial judge to recuse himself or lead the public to question the trial judge’s impartiality.

CAAF’s newly issued opinion in United States v. Hull, No. 11-0131/AF, is here.   CAAF affirms AFCCA’s decision,  Chief Judge Effron wrote for a unanimous court.

The case provides important guidance to trial defense counsel concerning how to attempt to challenge a finding based on newly discovered evidence that comes to light after trial but before the CA acts.  Hull emphasized what the trial defense counsel didn’t do upon acquiring an unsworn statement from Ms. Smith alleging that the complaining witness had told her that the alleged rape was actually consensual:

Most important, the defense — having been informed of the SJA’s negative view of the defense request due to the vagueness of the information and related matters — did not ask the convening authority to order a post-trial Article 39(a) session for the purpose of compelling Ms. Smith or any other witnesses to appear and give sworn testimony. In the absence of a defense request for a post-trial Article 39(a) session, and in light of the vague nature of the unsworn information provided by the defense, the SJA was not obligated to inform the convening authority as to the possibility of ordering such a hearing.

CAAF today issued its opinion in United States v. Sullivan, No. 10-0383/MC, affirming NMCCA. Here’s a link.  Judge Baker, who wrote for the majority, was joined by Judges Stucky and Ryan.  Chief Judge Effron, joined by Judge Edrmann, dissented. 

By my count, 11 cases argued this term remain undecided.