[Update:  this event has been postponed due to weather issues.  We will update the post and provide a link to the new flyer when it is available]  On January 28, 2016, from 6:00 to 8:00 pm, there will be a panel discussion of DoD’s proposed military justice legislation resulting, in part, from the work of the Military Justice Review Group (MJRG).  The panel is co-sponsored by the American Bar Association’s Standing Committee on Armed Forces Law, in cooperation with the ABA’s Standing Committee on Law and National Security, and the Judge Advocates Association.  See details here.

I have not heard any postponement due to weather. [Update:  Well that’s not true now.]

Location:  Founders Room, Offices of Dentons US LLP, 1900 K Street, Washington DC, 20006

Moderator: The Honorable James Baker, former Chief Judge, U.S. Court of Appeals for the Armed Forces

Panelists:

  • The Honorable Andrew Effron, former Director of the MJRG
  • Col. William N. Pigott, Chair, DoD Joint Service Committee on Military Justice
  • LtCol Julie Huygen, U.S. Air Force representative, Joint Service Committee on Military Justice
  • COL Walt Hudson, U.S. Army representative, Joint Service Committee on Military Justice
  • CAPT Warren A. Record, U.S. Navy representative, Joint Service Committee on Military Justice

There is no charge for this event, but the Committee asks that you please email Susan.Koz@americanbar.org to RSVP.

This week at SCOTUS: The Court denied the cert petition in Schloff. The Court extended the time for filing a response in Sullivan to February 29.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 23, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 17, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 2, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

From the Code Committee, here:

This year’s meeting will be held at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, DC 20442-0001, at 10:00 a.m. on Tuesday, March 1, 2016. The agenda for this meeting will include consideration of proposed changes to the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, and other matters relating to the operation of the Uniform Code of Military Justice throughout the Armed Forces.

 

Significant military justice event this week: The Judicial Proceedings Panel will hold a public meeting on Friday, January 22, 2016, beginning st 9 a.m., at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: The Court denied the cert petition in Arness.

A request for an extension of time to file a cert petition was filed in Akbar v. United States. In United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015) (CAAFlog case page), CAAF narrowly affirmed Sergeant Akbar’s death sentence for his attack on his fellow soldiers in Kuwait in 2003. Akbar is one of only six military death row inmates: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral argument date at CAAF is February 23, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 21, 2016, at 10 a.m.:

United States v. Crews, No. 20130766

Issues:
I. Whether the military judge erred in instructing the panel that indecent exposure was a lesser included offense to indecent act.
II. Whether the evidence is factually sufficient to sustain the finding of guilty on the specification of Charge I (sexual abuse of a child).
III. Were appellant’s trial defense counsel ineffective by: 1) failing to object to Mrs. KC’s testimony repeating her daughter’s out-of-court statement that appellant had inappropriately touched her (see R. at 148); and 2) during the cross examination of DH, eliciting from DH that he made prior statements that appellant had touched KG, without requesting a limiting instruction from the military judge that such statements could not be considered for their truth?

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week: United States v. Peterman, No. 38705, at 2 p.m. on Friday January 22, 2016. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

Audio of today’s oral argument is available at the following link:

United States v. Chin, No. 15-0749/AF (CAAFlog case page): Oral argument audio.

Audio of yesterday’s oral arguments at CAAF is available at the following links:

United States v. Henning, No. 16-0026/AR (CAAFlog case page): Oral argument audio

United States v. Pease, No. 16-0014/NA (CAAFlog case page): Oral argument audio

CAAF’s 2016 Continuing Legal Education and Training Program will occur on Wednesday and Thursday, March 2 and 3, 2016, at American University, Washington College of Law, Claudio Grossman Hall.

The registration form and schedule are not yet posted, but will eventually be available here.

CAAF decided the Marine Corps case of United States v. Riggins, __ M.J. __, No. 15-0334/MC (CAAFlog case page) (link to slip op.), on January 7, 2016. The court finds that assault consummated by a battery (in violation of Article 128) is not a lesser included offense of either sexual assault or abusive sexual contact by placing in fear through the use or abuse of military position, rank, or authority (in violation of Article 120(b)(1)(a) (2012) and Article 120(d) (2012)).

Judge Ohlson writes for a unanimous court.

CAAF granted review of a single issue:

Whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.

The case involves the appellant’s sexual encounter with a subordinate. The appellant was tried by a general court-martial composed of a military judge alone. He pleaded guilty to fraternization, making a false official statement, and adultery. He pleaded not guilty to other offenses that included four specifications of sexual assault and eight specifications of abusive sexual contact. The sexual offenses alleged that the appellant placed the alleged victim in fear that he would affect her military career through the use or abuse of military position, rank, or authority.

During the trial, and over defense objection, the military judge determined that assault consummated by a battery is a lesser included offense of these sexual offenses, and then he convicted the appellant of five specifications of assault consummated by a battery as lesser included offenses of two of the sexual assault specifications and three of the abusive sexual contact specifications. The appellant was acquitted of the other sexual charges, and was sentenced to confinement for three years and a bad-conduct discharge.

The military judge made special findings when he convicted the appellant of the lesser offenses, explaining that:

he found the appellant “did not expressly place [her] in fear of him taking action that would affect her career,” the context and circumstances surrounding the incident were such that [she] was, in fact, fearful of what could happen to her and her military career if she resisted the appellant’s sexual advances. This fear, combined with her oral protests allow this court to also find that “it was not reasonable for the appellant to have believed that [she] was consenting.”

United States v. Riggins, No. 201400046, slip op. at 10 (N-M. Ct. Crim. App. Nov. 26, 2014) (quoting record) (marks omitted). The appellant challenged the military judge’s determination that assault consummated by a battery is a lesser included offense at the NMCCA, but the CCA concluded that:

One cannot prove sexual assault by threatening or placing that other person in fear without necessarily proving assault consummated by a battery, because one cannot prove a legal inability to consent without necessarily proving a lack of consent. Accordingly, we find assault consummated by a battery to be an LIO of sexual assault under Article 120(b)(1), UCMJ (2012 ed.).

United States v. Riggins, No. 201400046, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26, 2014).

Judge Ohlson’s decision for the unanimous CAAF finds flaw in the NMCCA’s decision by highlighting the difference between a legal inability to consent and the element of lack of consent, but the decision repeatedly emphasizes that it is limited to the circumstances presented in this case.

Read more »

This week at SCOTUS: The SG received an extension of time to respond to the cert petition in Katso. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in three cases this week:

Tuesday, January 12, 2016, at 9:30 a.m.:

United States v. Henning, No. 16-0026/AR (CAAFlog case page)

Issue: Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

Case Links:
ACCA opinion
Blog post: The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
• Appellant’s Brief (supplement to the petition for grant of review)
Appellee’s (Government) Brief (answer to the petition)
Blog post: Argument preview

Followed by:

United States v. Pease, No. 16-0014/NA (CAAFlog case page)

Issues:
I. The lower court judicially defined “incapable of consenting” contrary to the instructions given to the members and used this definition to find three charges of sexual assault and one charge of abusive sexual contact factually insufficient. In creating this new legal definition not considered by the factfinder and nowhere present in the record, did the lower court consider matters outside the record and outside its statutory authority in conducting its factual sufficiency review?
II. The lower court judicially defined “incapable of consenting” in a manner that limits prosecutions to only two situations – “inability to appreciate” and “inability to make and communicate” an agreement. To prove the latter, the court further required proof that a victim be unable both to make and to communicate a decision to engage in the conduct at issue. Nothing in the statute reflects congressional intent to limit Article 120, UCMJ, prosecutions in this manner. Did the lower court err?

Case Links:
NMCCA opinion (74 M.J. 763)
Blog post: The NMCCA interprets the term “incapable of consenting”
Appellant’s (Government) Brief
Appellee’s Brief
Appellant’s (Government) Reply Brief
Blog post: Argument preview

Wednesday, January 13, 2016, at 9:30 a.m.:

United States v. Chin, No. 15-0749/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

Case Links:
AFCCA opinion
Blog post: The Air Force JAG certifies two cases
Blog post: The Air Force JAG amends the certified issue
Appellant’s (Government) brief
• Appellee’s Brief
Amicus Brief of Navy-Marine Corps Appellate Government Division
Amicus Brief of Army Appellate Government Division
Amicus Brief of Coast Guard Appellate Government Division
• Amicus Brief of Marine Corps Defense Services Organization
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in two cases this week. Both arguments will be heard at law schools:

Monday, January 11, 2016, at 5 p.m., at Ohio State University Moritz College of Law:

United States v. Herrmann, No. 20131064

Issue: Whether the evidence is factually sufficient to sustain a conviction on Specification 2 of Charge III, reckless endangerment, when the government failed to elicit any evidence of the likelihood that the parachutes would fail to deploy therefore causing death or grievous bodily harm.

Wednesday, January 13, 2016, at 5 p.m., at Michigan State University College of Law

United States v. Williams, No. 20140401

Issue: Whether the evidence was legally sufficient to support the findings of guilty to indecent exposure where appellant was fully clothed at the time he showed a photograph of his genitalia.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 22, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

Disclaimer: I authored an amicus brief on behalf of the Marine Corps Defense Services Organization and in support of the appellee’s position in this case. The brief is available here and is discussed in this post.

CAAF will hear oral argument in the certified Air Force case of United States v. Chin, No. 15-0749/AF (CAAFlog case page), on Wednesday, January 13, 2016, at 9:30 a.m. The case challenges the authority of the Air Force Court of Criminal Appeals to grant relief for an unreasonable multiplication of charges despite the appellee having waived the issue in a pretrial agreement.

Last August (as discussed here), the Judge Advocate General of the Air Force (no typo) certified one issue to CAAF:

Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In November (as discussed here), the JAG amended the certified issue to remove the reference to an abuse of discretion:

Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

In accordance with a pretrial agreement, the appellee pleaded guilty at a general court-martial composed of a military judge alone to six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them, in violation of Articles 92, 121, and 134. The charges related to the appellee’s mishandling of classified material. The adjudged sentence was confinement for 12 months, total forfeitures, reduction to E-2, and a bad-conduct discharge. The convening authority approved only 10 months of confinement (as an act of clemency unrelated to the terms of the pretrial agreement).

The appellee’s pretrial agreement included a provision by which the appellee waived all waivable motions. Waiver is the intentional relinquishment of a known right. Waiver is distinct from forfeiture, which is the failure to preserve an error. Making a timely objection preserves an error. Whether an error is preserved (by objection), forfeited (by failure to object), or waived (by intentional and knowing relinquishment) affects the entitlement to relief from the error. An appellant is entitled to relief from a preserved, non-harmless error. An appellant is also entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). However, an appellant is not entitled to relief for a waived error.

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) – also an Air Force case – CAAF held that issues of multiplicity and unreasonable multiplication of charges may be waived in a pretrial agreement. Gladue affirms that the provision in the pretrial agreement in Chin that waived all waivable motions served to waive the issue of unreasonable multiplication of charges, meaning that the appellee was not entitled to any relief from this issue. However, despite the waiver, the AFCCA found that there was an unreasonable multiplication of charges and granted limited relief.

In granting relief for a waived issue, the AFCCA explained that:

[E]ven after Gladue, this court’s statutory authority to affirm findings of guilty and any or all of the resultant sentence is limited to affirming only those that we find correct in law and fact and determine, on the basis of the entire record, should be approved. See Article 66(c), UCMJ. Because of the unreasonable multiplication of charges so plainly presented in this case, we elect to exercise our plenary, de novo power of review and have determined that not all of the findings of guilty should be approved. We recognize this is a significant departure from our consistent practice of declining to review, on appeal, issues that were waived at trial. This deviation from our past treatment and application of waiver is warranted by the facts of this case, as explained in the analysis that follows. We differentiate this case from those in which we have found waiver, in that the totality of the circumstances presented here convinces us that the charging scheme grossly exaggerates the appellant’s criminality. Under our broad Article 66(c) authority, we find that not all of the appellant’s convictions should be approved.

Slip op. at 6.

The certified issue challenges the CCA’s authority to take this action.

Read more »

CAAF decided the Navy case of United States v. Bess, __ M.J. __, No. 15-0372/NA (CAAFlog case page) (link to slip op.), on Wednesday, January 6, 2016. The court finds that the military judge abused his discretion when he provided additional evidence to the members during deliberations without allowing the appellant an opportunity to challenge the reliability of that evidence. The court reverses the appellant’s convictions of attempting to commit indecent acts and committing indecent acts, and the decision of the Navy-Marine Corps CCA, and authorizes a rehearing.

Judge Stucky writes for a unanimous court.

CAAF specified the following issue for review in this case:

Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

The appellant was tried by a general court-martial composed of members with enlisted representation. He was convicted contrary to his pleas of not guilty of two specifications of attempting to commit an indecent act and four specifications of committing indecent acts, in violation of Articles 80 and 120. The members sentenced the appellant to confinement for two years and a dishonorable discharge.

The appellant was a Navy x-ray technician and the alleged indecent acts involved instructing female patients to be completely naked for x-ray examinations. The appellant was tried on various charges (including allegations of physical contact) involving seven alleged victims, and he was convicted of one offense for six of those seven. However, the appellant’s identity as the x-ray technician for the alleged victims was a hotly contested issue in the trial.

After the close of evidence and during deliberations the members asked the military judge for additional evidence including muster reports (attendance records) that could be used to determine whether the appellant was the x-ray technician on duty at the time of each alleged indecent act. Article 46(a) of the UCMJ provides explicit statutory authorization for the court-martial to obtain evidence on its own initiative. Considering the members’ request, the military judge conducted a hearing outside the presence of the members, heard testimony about the muster reports, and concluded that they were admissible as business records. However, the military judge denied a defense request to examine the witnesses before the members or to give additional closing argument, and instead “handed the reports to the panel with no explanation, stating only that they had ‘been admitted into evidence.'” Slip op. at 3. Soon afterward the members returned with their findings.

Judge Stucky finds no fault with the judge’s ruling admitting the muster reports. However, he concludes that “giving controverted evidence to the factfinder with no opportunity for the accused to examine or cross-examine witnesses or in any way to rebut that evidence in front of the members is unprecedented in our legal system, and cannot be reconciled with due process.” Slip op. at 7.

Read more »

In a pair of petitions for extraordinary relief filed at the very end of last year, the Air Force Government Appellate Division (appearing as the United States) asks CAAF:

for an order directing the [Air Force Court of Criminal Appeals] to conduct a full in camera review of [appellate exhibits] and only allow appellate defense counsel and appellate government counsel to view any portions of those exhibits that the trial judge abused her discretion in not releasing to the parties at trial.

The petitions are captioned United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Jerry C. Harrison, Real Party In Interest, No. 16-0251/AF (petition available here), and United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Cory D. Phillips, Real Party In Interest, No. 16-0256/AF (petition available here).

Both cases involve convictions of sex offenses. The records in both cases include medical or mental health records of the alleged victims that were subject to in camera reviews by a military judge at trial but not released to the defense. Appellate defense counsel in both cases asked the Air Force Court of Criminal Appeals to permit them to review the sealed matters in order to determine if there is a basis to challenge the trial judge’s ruling that denied the defense access to the materials at trial. Such a review is a matter of routine, and the CCA granted the defense request in both cases. The Government, however, wants CAAF to prevent that review from occurring.

The petitions address R.C.M. 1103A(b)(4)(A) which states that:

Reviewing and appellate authorities may examine sealed matters when those authorities determine that such action is reasonably necessary to a proper fulfillment of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts-Martial, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility.

Further, R.C.M. 1103A(b)(4)(D)(iv) defines reviewing and appellate authorities to include:

Appellate defense counsel

However, the petitions assert that:

The purpose of sealing records under Mil. R. Evid. 513 is to protect victims and others from having their records open to those who have no need to view them. It eviscerates the rule and undermines the policy behind it to then allow an appellate defense counsel to have access to the very records that a military judge has declared to be irrelevant. Furthermore, according to AFCCA’s expansive reading of R.C.M. 1103A, if an appellant were to conduct their appeal pro se, without AFCCA first conducting an in camera review, the appellant would then be granted access to the very records Mil. R. Evid. 513 was designed to protect.

Harrison Pet. at 10-11; Phillips Pet. at 11.

Read more »

CAAF will hear oral argument in the certified Navy case of United States v. Pease, No. 16-0014/NA (CAAFlog case page), on Tuesday, January 12, 2016. The court will review the published decision of the Navy-Marine Corps CCA that reversed the appellee’s convictions of sexual assault and abusive sexual contact on the basis of factual insufficiency. The CCA concluded that the Government failed to prove that the intoxicated victims were incapable of consenting and that the appellant knew or reasonably should have known that they were incapable of consenting.

The Judge Advocate General of the Air Force Navy certified two issues to CAAF:

The lower court judicially defined “incapable of consenting” contrary to the instructions given to the members and used this definition to find three charges of sexual assault and one charge of abusive sexual contact factually insufficient. In creating this new legal definition not considered by the factfinder and nowhere present in the record, did the lower court consider matters outside the record and outside its statutory authority in conducting its factual sufficiency review?

The lower court judicially defined “incapable of consenting” in a manner that limits prosecutions to only two situations – “inability to appreciate” and “inability to make and communicate” an agreement. To prove the latter, the court further required proof that a victim be unable both to make and to communicate a decision to engage in the conduct at issue. Nothing in the statute reflects congressional intent to limit Article 120, UCMJ, prosecutions in this manner. Did the lower court err?

The case involves two female alleged victims: S.K. and B.S. Both were subordinates of the appellee, and both had (separate) sexual encounters with the appellee after drinking significant amounts of alcohol. The appellee was convicted of engaging in sexual activity with the alleged victims when they were incapable of consenting to the conduct due to impairment by an intoxicant and that the appellee knew or reasonably should have known of their impairment.

The CCA reversed these convictions because it found that the evidence did not support the conclusion that the alleged victims were incapable of consenting, and also because it found that the evidence did support the conclusion that the appellee “reasonably may have believed that they were willing partners in sexual activity.” United States v. Pease, 74 M.J. 763, __, No. 201400165, slip op. at 14 (N-M. Ct. Crim. App. Jul. 14, 2015). The CCA’s conclusions were based in part on the following facts:

[S.K.’s] fragmentary memory of kissing the appell[ee] and telling him he was cute, then of being propped up supporting her own weight on her elbows having sexual intercourse with him

Slip op. at 13-14. And:

[B.S.] . . . remembered that when certain activities were painful or unpleasant, she was able to determine that she did not want that activity to continue and to articulate that to the appellant, who stopped. She further candidly related active participation in and even enjoying portions of the sexual activity.

Slip op. at 14. The CCA viewed these facts as evidence of capacity to consent that undercut the sufficiency of the prosecution’s evidence.

Yet the CCA also went further, analyzing the meaning of the statutory term incapable of consenting in the context of the UCMJ’s definition of consent:

After enumerating that it is a crime to commit sexual acts or contact upon a person incapable of consenting, Article 120 defines “consent” as “a freely given agreement to the conduct at issue by a competent person” and goes on to state that a “sleeping, unconscious, or incompetent person cannot consent.” Art. 120(g)(8), UCMJ.

Slip op. at 12. This analysis was likely prompted by the prosecutor’s closing argument that the alleged victims weren’t just incapable of consenting in fact, they were also not competent people to consent as a matter of law:

During argument, Trial Counsel explained that a competent person is a “person who is actually able to consent to something.” (J.A. 168.) He then argued essentially that Appellee was guilty if a reasonable person who viewed the incidents would conclude that the alleged victim was “so impaired she’s not competent to agree to [the sexual act].” (J.A. 169, 237.)

Gov’t Br. at 9. Significantly, during deliberations the members asked the military judge to provide them with a definition of a competent person. However, the prosecution objected and the judge declined to provide a definition. Gov’t Br. at 10. But the CCA determined that by the plain language of the statute,

a “competent” person is simply a person who possesses the physical and mental ability to consent. An “incompetent” person is a person who lacks either the mental or physical ability to consent due to a cause enumerated in the statute. To be able to freely give an agreement, a person must first possess the cognitive ability to appreciate the nature of the conduct in question, then possess the mental and physical ability to make and to communicate a decision regarding that conduct to the other person.

Slip op. at 12-13. It then interpreted the statutory term incapable of consenting as requiring that the alleged victims:

lacked the cognitive ability to appreciate the sexual conduct in question or the physical or mental ability to make and to communicate a decision about whether they agreed to the conduct.

Slip op. at 13.

The first certified issue challenges the CCA’s ability to engage in this statutory interpretation. The second issue challenges the CCA’s conclusion about the meaning of the term incapable of consenting.

Read more »

CAAF will hear oral argument in the Army case of United States v. Henning, No. 16-0026/AR (CAAFlog case page), on Tuesday, January 12, 2016, at 9:30 a.m. The case involves a Government appeal of a military judge’s ruling that suppressed DNA evidence in a sexual assault case.

The DNA results included a finding that approximately 1 in 220 unrelated individuals in the general population would be a match. The military judge concluded that the results were unreliable and suppressed them. However, the Army CCA reversed after concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous. CAAF then stayed the trial proceedings and granted review of a single issue:

Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

The Army CCA’s decision (discussed here) includes the following description of the facts of the case:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The defense moved to suppress the DNA analysis on the basis that it “does not meet the requirements for expert testimony established by Military Rule of Evidence 702.” Slip op. at 2 (marks omitted). The military judge granted the motion, concluding in part that the formula that the laboratory used to draw conclusions about the DNA was not reliable, that the ensuing battle of the experts would create a trial-within-a-trial, and that:

9. “Using the 1 in 220 statistic, in a population as small as Weston, Missouri [the location of the alleged assault –ZDS] (1,641 in the 2010 census (citation omitted)), only 7 people could be contributors to the genetic material in Mrs. [SLN]’s underwear.”

10. Because the “Government is sure to point out that of those seven possible people, only one was in Mrs. [SLN]’s house, . . . the probative value is substantially outweighed by the danger of unfair prejudice, misleading the panel members, and waste of time.”

Slip op. at 6 (quoting military judge’s ruling) (all marks other than my notation are in original). But the CCA reversed, concluding in part that “once a proper foundation is laid, not only is DNA testing sufficiently reliable and admissible, but evidence of statistical probabilities of an alleged match is admissible as well.” United States v. Henning, No. 20150410, slip op. at 11 (A. Ct. Crim. App. Sep. 3, 2015). The court also explained that “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Slip op. at 10-11.

CAAF then granted review.

Read more »

This week at SCOTUS: The Supreme Court has requested a response from the SG in Sullivan. The petition in Schloff has been scheduled for conference on January 15. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 11, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 22, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The NMCCA’s website is unavailable due to site maintenance.