Two years ago, Article 6b was the #6 Military Justice Story of 2016. Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. But a significant decision from 2018 puts Article 6b – and the corresponding Rule for Courts-Martial 1001A (renumbered as 1001(c) in the 2019 MCM) – back on our list as the #9 Military Justice Story of 2018.

In United States v. Barker, 77 M.J. 377 (C.A.A.F. May 21, 2018) (CAAFlog case page), CAAF reviewed three victim-impact letters from a child pornography victim that were admitted into evidence under R.C.M. 1001A, which is the President’s implementation of a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Baker pleaded guilty at a general court-martial to wrongful possession of child pornography and the letters were offered by the prosecution during the sentencing phase of the proceeding. The trial counsel proffered that the victim (identified by the initials KF) provided the letters to the FBI years before Barker’s misconduct, but KF did not participate in Barker’s court-martial in any way. The defense vigorously objected to the admission of the letters, but the military judge overruled the objections and admitted them.

That was error, ruled CAAF, because of KF’s non-participation.

Judge Ryan wrote for a functionally-unanimous court (Chief Judge Stucky dissented, but agreed with Judge Ryan’s analysis of R.C.M. 1001A) and explained that:

the rights vindicated by R.C.M. 1001A are personal to the victim in each individual case. Therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, R.C.M. 1001A(a), the special victim’s counsel, id., or the victim’s representative, R.C.M. 1001A(d)–(e).

77 M.J. at 382 (emphasis added). In other words, victim’s who don’t participate won’t be heard. Judge Ryan concluded:

All of the procedures in R.C.M. 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel. Moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact “directly relating to or arising from the offense of which the accused has been found guilty.” R.C.M. 1001A(b)(2).

In this case, trial counsel appears to have had no contact with KF, KF did not in fact participate in the proceedings, and there is no indication that KF was even aware of Appellant’s trial. Most importantly, the statements were not offered by either KF or her advocate as R.C.M. 1001A requires. Thus, the military judge abused his discretion in admitting these statements under R.C.M. 1001A.

77 M.J. at 383.

The decision provided no benefit for Barker, however. Barker faced a maximum authorized punishment of confinement for 20 years, had a pretrial agreement that limited his confinement to four years, and was actually sentenced to a comparatively light two years and six months. Considering that along with the “particularly horrific” nature of the images at issue, 77 M.J. at 384, CAAF found the error harmless and affirmed the findings and sentence.

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