CAAF will hear oral argument in the Army case of United States v. Herrmann, No. 16-0599/AR (CAAFlog case page), on Wednesday, April 5, 2017, at 2:00 p.m., at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio. The court will review the legal sufficiency of the appellant’s conviction of reckless endangerment in violation of Article 134 for the pencil packing of parachutes, which is when a parachute is not properly packed or inspected but is fraudulently reported as being properly packed and inspected. It granted review of a single issue:

Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.

Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.

The convictions were based on 14 parachutes that were pencil packed. Each of the parachutes had deficiencies deliberately introduced into their packing for training purposes, and Herrmann was the inspector responsible for ensuring that they were properly re-packed prior to being returned to service. The parachutes were, however, reserve type parachutes that would only be used if the jumper’s primary parachute failed somehow. None of the 14 parachutes was ever issued for a jump, nevertheless Herrmann was prosecuted for reckless endangerment based on the possibility of death that could have resulted had any been issued and then failed to work.

At trial Hermann’s defense focused on the speculative nature of any such harm, with his defense counsel arguing in closing that:

Everything they [the prosecutors] have produced is speculative, well, it could happen, but they have not produced any evidence that if those things failed – those deficiencies failed that this is a likely result.

App. Br. at 8. Hermann now takes that argument to CAAF.

As an enumerated offense under Article 134, reckless endangerment’s elements are prescribed by the President as:

(1) That the accused did engage in conduct;

(2) That the conduct was wrongful and reckless or wanton;

(3) That the conduct was likely to produce death or grievous bodily harm to another person; and

(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s brief relies heavily on CAAF’s decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), our #7 Military Justice Story of 2015, for the principle that the third element of likely to produce death or grievous bodily harm means that the prosecution had to prove that a parachute failure was likely and not merely that such harm was the likely result of a parachute failure. Based on this premise, Herrmann’s brief offers five areas of insufficiency in the prosecution’s case:

The government put on either no or insufficient evidence regarding the likelihood of:

1) the reserve parachute making it through in-house checks;

2) the reserve parachute getting onto a prospective jumper;

3) JMPI not catching the deficiency;

4) the prospective jumper making it onto an aircraft;

5) the prospective jumper exiting the aircraft;

6) the main parachute failing to the point a reserve parachute is needed;

7) the jumper activating the reserve parachute; and

8) the reserve parachute failing because it was not re-packed.

App. Br. at 9 (paragraphing added).

The Army Appellate Government Division’s answer rejects these eight deficiencies as “appear[ing] to demand a level of proof that is simply not the standard required.” Gov’t Div. Br. at 23. Furthermore, the Division asserts that the discussion of the meaning of likely in Gutierrez does not apply to the use of the term likely in the offense of reckless endangerment:

It is . . . reasonable to infer that, when the President enumerated the offense of reckless endangerment, his express reference to the Article 128 definition of “likely” was largely due to an intent to employ the Joseph/Johnson proposition that had developed in HIV-related aggravated assault cases. Accordingly, this Court’s recent abandonment of that standard in Gutierrez may run contrary to what was originally intended for reckless endangerment under Article 134.

Gov’t Div. Br. at 14. The Division suggests that the offense is intended “to capture conduct that may not necessarily arise to aggravated assault, but nonetheless creates a substantial and unjustified risk of death or bodily harm.” Gov’t Div. Br. at 18. And,

In this case, the evidence was sufficient to prove that death or grievous bodily harm was a natural and probable consequence of appellant’s willful failure to inspect and ensure the parachutes were properly packed.

Gov’t Div. Br. at 21.

Herrmann’s reply brief highlights that the Appellate Government Division’s argument largely hinges on CAAF finding that the term likely doesn’t have a consistent meaning:

Contrary to the government’s assertions regarding Gutierrez, the term “likely” does not mean one thing for aggravated assault under Article 128 and another thing for reckless endangerment under Article 134.

Reply Br. at 2.

Case Links:
ACCA opinion (75 M.J. 672)
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Law student
Blog post: Argument preview

20 Responses to “Argument Preview: Determining the meaning of likely in United States v. Herrmann, No. 16-0599/AR”

  1. Charlie Gittins says:

    Is pencil packing a means likely to cause death or grievous bodily injury.  No.  Just no.  The chances of a Reserve deployment on any given jump are tiny — microscopic.  Even if a Reserve deployment occurred and there was a Reserve packing error, it is still likely that the Reserve would function properly, although with some hesitation.  Parachutes — especially round reserves are designed to open and fast.  For someone with some knowledge of skydiving, parachutes, parachute packing and rigging I find this theory by the G clearly a reach.   
     

  2. Andy Pollock says:

    So you think this is a matter of over-charging, dereliction, okay, but not reckless endangerment? 
     
    Andy

  3. charlie Gittins says:

    Yeah, it’s dereliction of duty.  Not worth a court-martial.  But that is why they over-charged it; to make it a general court-martial.  You have to remember that expert military jumpers may have 200 jumps.  Most “expert” civilian skydivers have well over 2000 and as many as 10-15000.   A military guy with 200 jumps who thinks he is an expert is likely to be much more put out by pencil packing than a vastly more experienced skydiver.  Don’t mean to offend any military airborne guys; it’s just the way it is.    

  4. stewie says:

    I just met you…and this is crazy…you packed my chute wrong, so fall me? Maybe.

  5. Scott says:

    Mr. Gittins, military experts who don’t have that much experience in their area of expertise. That reminds me of another field, just can’t put my finger on it . . .

  6. Charlie Gittins says:

    Scott:  Like?  At least have the moral courage to say what you have to say.
     

  7. DCGoneGalt says:

    stewie for the win.  I posit it is possible that, in addition to having the alter ago of concerned defender, stewie may also actually be Carlie Rae Jepsen.  I have not seen any direct evidence to indicate that this is false.  So it may very well be true.

  8. Scott says:

    Sorry, I thought it was obvious… Referencing the lack of internal expertise in the military justice field.  Where “expert” CoJs, SDCs, etc only have a fraction of the experience of civilian practitioners. 

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

    Why on earth would a parachute that was deliberately tampered with for training purposes EVER be placed back into use?  Seems crazy to me, perhaps even reckless.  Just sayin’.

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

    Seems to me, in applying Gutierrez to this case, you don’t even get to the magnitude of the harm if you can’t establish the likelihood of the risk of harm.  Even though people no longer are likely to die from HIV, they are likely to suffer “grievous bodily harm,” they can’t deploy anymore, taking medicine for the rest of their lives, etc.  So the “magnitude of harm” is still there to meet the “likely” requirement for aggravated assault.  But the risk of getting HIV from unprotected sex is only 1 in 500.  So if you happen to be that 1 person, it sucks to be you, but a .2% risk of harm apparently isn’t enough to count as a “likely enough” risk of harm.  In Herrmann’s case, apparently even less than .2% risk of death or grievous bodily harm from a malfunctioning reserve parachute.
     
    It’s like a math problem–0 risk of harm x 100 magnitude of harm is still 0.

  11. Isaac Kennen says:

    Yeah, it’s dereliction of duty.  Not worth a court-martial.  

     
    I agree that reckless endangerment was overcharged.  I disagree that the dereliction represented by pencil-packing a chute, even an unused reserve chute, is unworthy of criminal prosecution.  If any dereliction is worthy if a special court-martial, that’s it.

  12. Charlie Gittins says:

    Isaac:  I get your point of view, but I see it differently as a guy with 2000 jumps, an FAA Senior Rigger rating, Accelerated Freefall Instructor  and Tandem Instructor ratings.  Pencil packing happens all the time.  It is ungood, I would discipline someone I caught doing it at my DZ as Safety and Training Advisor, but there is a big “likely” problem when you consider all of the shit that has to happen before you get to “likely to die.” You can have a perfectly packed reserve and use it and still die.  A reserve packing error can kill you, but most riggers are trying to do their best.  You can have a perfectly packed main parachute and use it and still die.  All you need to die is a weird gust at 30 feet and you can die.  If your reserve was packed properly the last time it was packed, whether it was subsequently pencil packed, it will most likely work as advertised.

  13. vulture says:

    Defects where in the chutes for the purpose of being found.  They where more likely to be found than cause harm.

  14. Isaac Kennen says:

    I certainly can’t claim to have experience as a paratrooper.  And I whole absolutely agree that reckless endangerment is not in the cards because of the insufficiency of the evidence as regards the likelihood element.  But, a misdemeanor conviction for willfully dereliction of duty doesn’t offend my sense of justice.  And it serves a huge societal benefit – it sends a message to parents, spouses and children that we take the safety of their loved ones – in an already dangerous line of work – seriously.  That’s a compelling reason in and of itself to prosecute that willful dereliction. That’s admittedly a lay view – but, in some respect, isn’t the purpose of criminal law to satiate the sense of justice of a society of laymen?
     
     

  15. J.M. says:

    Tami:
    Deficiencies purposely packed into chutes are for jumpmaster training. The Army has 3 static line jumpmaster schools, at Benning, Bragg, and USASOC runs a mobile training team jumpmaster school that visits various USASOC units and trains their jumpmasters at home station. The schools at Benning and Bragg maintain their own ‘training’ chutes for this purpose and those are segregated to ensure they are never jumped (IIRC, they are actually older chutes past their service life). Since it would be impractical for the USASOC team to haul enough mains and reserves with them for this purpose (who wants to file that baggage expense in their DTS claim?), whichever SF unit is hosting them is required to provide the training materials. Which means they have to pull mains and reserves from operational chutes for the class and those chutes are then repacked and inspected before being put back into rotation. Herrmann was a rigger with a SF unit that had recently hosted a jumpmaster training team. 
    And with respect to Mr Gittins, skydiving is not military static line. Much lower drop altitude and a much smaller margin for error when it comes to malfunctions during a jump. A military static line jumper has (according to TC 3-21.220 para 15-4), when jumping from 1250ft (the normal height for Hollywood jumps) 8.8 seconds from exit of the aircraft to safely activate a reserve. When taking into account the ‘4000’ count waiting for the main to deploy, a jumper has 4.8 seconds to deploy a reserve in the event of a malfunction. Two common reserve deficiencies are missing ejector spring and worn closing loops. A missing or improperly installed ejector spring means that in the event of a total malfunction of the reserve, that jumper has 4.8 seconds to manually deploy the reserve. A closing loop failure can result in a reserve activation within the aircraft. Jumpmasters are most at risk for this due to their duties performing door checks. 

  16. stewie says:

    Gotta go with JM, he’s got the experience but as others have said, a special CM for dereliction does not remotely offend a sense of justice IMO.

  17. Philip D Cave says:

    I do not have a problem with an SPCM for willful dereliction of duty (assuming the evidence establishes willfulness vice negligence or that there was a problem in the Soldier’s training on how to pack and check chutes).
    I do have a problem, on the facts of this case, with the aggravated charge on the apparent facts limited to this case.  There was an intervening event that makes it close to 100% unlikely that there would be death or GBH–this is a training exercise.  The instructors knew of the errors in the chute, and they could be expected to check the chutes themselves and get corrections once the training was over.  Unless the instructors were also derelict in failing to inspect and correct any chutes before return to service or whatever the term is, they are an intervening check on the trainee’s errors.  Or am I wrong on this?
    I do have a problem with gun decking (that’s the Navy term) where inspection and a tag out is signed off as maintenance or inspection complete and satisfactory.  It’s a serious safety issue.  Have been TC and DC in such cases where people have died or been seriously injured.
     
    If the Soldier is willing to gun deck checks and sign-offs in a training exercise, how can we be sure they will do their work properly in real life where it’s possible the subsequent QA and checks may not get done.  Don’t have any idea about parachuting, other than it’s dangerous, so I appreciate the education above.
    So, this Soldier and others need the court-martial for its exemplary effect on the Soldier and others.
     
     
     

  18. J.M. says:

    Mr Cave, 
     
    As I understood the chain of events from reading the previous appeal, the chutes were pulled from rotation,  repacked with built in deficiencies, loaned out for the training and were supposed to be repacked and inspected during this process by Herrmann. Jumpmaster instructors are not trained to pack chutes or even correct deficiencies. 

  19. Vulture says:

    Maybe this will tie things together by putting it in terms of Scholarship Saturday.  From 1875 to 1894 the number of deaths that resulted from horse kicks in the German Army was recorded and compared to a statistical test.  The test applies to low levels of occurrence such as, chute malfunctions, and is fairly well studied and applied.  It enables predictions and tests when the likelihood of what is called a success is low.  In the 20 year span .7 deaths occurred per year per corps for a total of 196 deaths.  By applying the test of the distribution it came to very accurate results.  Horse Kick Deaths.  So for a particular year, or other variable, it was possible to determine the likelihood of a horse kick death.  My guess is that the number of deaths to due to chute malfunctions in the military is less than 196.  The Halo school had a few a couple of years back and that is all I know.
     
    Here is the rub:  If somebody has, say horse kick serum responsibilities, but fails to fill the bottle with horse kick serum and instead puts in hair tonic should they be Court-Martialed?  Regardless of the likelihood of a single fatal horse kick, you better freakin believe it.
     
    We can’t say who is going to live or die by whether or not they are wearing a red shirt.  Phil Cave is right, it’s already an inherently risky business and there is a reason I was always a pay hurt.

  20. stewie says:

    http://www.startrek.com/article/did-redshirts-really-die-more-often-on-tos
     
    It’s actually a gold shirt that makes you more likely to die, unless you are security redshirt.
    What if a redshirt was wearing a pencil-packed parachute?
    (I’m assuming their plane would crash before they could even jump)