I’m far behind on my coverage of the opinions from the CCAs and of court-martial news, but two big developments this week warrant mention.

First, the court-martial of Navy Special Operations Chief Edward Gallagher – that I previously mentioned here in connection with some questionable conduct by the prosecutor (leading to the prosecutor’s removal from the case) – ended this week, with Gallagher acquitted of everything except for one specification of violation of Article 134 for wrongfully posing for an unofficial picture with a human casualty. According to reports from Fox News and NPR, Gallagher was sentenced to reduction to E-6 (from E-7; in line with the prosecution’s request) and the maximum authorized confinement for four months and forfeiture of pay for four months. Due to pretrial confinement credit, however, Gallagher will not serve any additional confinement.

Second, a three-judge panel of the Navy-Marine Corps CCA issued a massive, 57-page, 21,000+ word opinion in United States v. Wilson, No. 201800022 (N.M. Ct. Crim. App. Jul. 1, 2019) (link to slip op.), in which it finds a conviction of sexual abuse of a child to be factually insufficient. Writing for a unanimous panel, Senior Judge Tang explains:

Carefully evaluating all of BP’s [the child] testimony and statements admitted at trial, we find that BP’s statements were fatally inconsistent and wholly irreconcilable. Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred. Faced with multiple descriptions of possible contacts—only some of which are consistent with guilt—we cannot find guilt beyond a reasonable doubt based solely on BP’s statements.

We next look to the other evidence admitted at trial for corroboration. We do not find evidence sufficient to overcome the infirmities in BP’s statements. There were no witnesses, physical evidence, or admissions of guilt by the appellant.

We next consider the testimony of several preeminent expert witnesses in the field of child psychology, maltreatment, and forensic interviewing. Most were presented by the government. The experts’ testimony assists us in understanding the limitations in children’s memories and children’s susceptibility to suggestion. But the expert testimony does nothing to resolve our genuine misgivings with the evidence. Rather, the testimony of the government’s expert witnesses only further diminishes the reliability of BP’s forensic inter-view and trial testimony.

Slip op. at 29 (emphasis in original). The analysis concludes:

We do not expect perfect consistency or flawless oratory from a six-year-old child. However, the government’s own experts indicated that, at least in July 2016, BP was capable of providing a narrative clearly describing her abuse but did not. And the government’s own experts found infirmities in the interview technique and a lack of clarity in BP’s statements. The expert testimony cannot reasonably explain the inconsistencies between all of BP’s statements.

. . .

We have carefully reviewed the government’s arguments on the evidence as they view it. We do not find that the proof is “such as to exclude . . . every fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.

Slip op. at 52-53.

6 Responses to “Gallagher gets acquitted of the most serious charges and the NMCCA finds a Colonel’s conviction of sexual abuse of a child to be factually insufficient”

  1. anon says:

    What a strange case Gallagher – Would it be correct to guess that the government did not obtain proffers before granting immunity?  And chose not to seek an instruction on lesser included offenses?

  2. Anonymous says:

    What will be done to the original trial counsel who was fired? Wonder if the government will go after Scott for perjury?

  3. anon says:

    We’ll wait and see, but my guess is that in the end nothing remarkable will happen to original TC and government will not go after Scott for perjury. 
    Given the close JAGC oversight of cases it seems impossible for TC to have been the senior government official in JAGC chain of command in on the leak investigation plan, so even if they investigate and have some kind of hearing he should be fine with the JAGC rules committee (and his state Bar I imagine would defer).  To mitigate bad press they could say they are investigating and holding a hearing and then in a year when issue has faded just issue some kind of rule clarification or exoneration. [Opposite outcome if TC and NCIS agent were acting without chain of command knowledge].
    For the perjury, after overcoming initial anger, government will probably decide that they won’t get good return prosecuting Scott for lying in his  first official statement (and they presented no evidence that his second story was a lie except that it doesn’t match the first).  Defense counsel already demonstrated ability to run rings around them in the press… no reason to continue this bad news story. [Opposite outcome in the unlikely event government finds some evidence like email concocting the immunity/perjury scheme].

  4. Contract Lawyer says:

     Regarding the Wilson appeal, I’m not sure whether anyone saw this coming. It is clear to me from reading the decision that the climate of the sexual assault issue resulted in the panel convicting Colonel Wilson of a serious crime when the evidence clearly reauired the panel to find him NOT GUILTY.  One implication is that panels try to convict unless an accused can establish innocence with clear and convincing evidence.  This means that unless the accused is able to carry this burden of proof, referral of charges is tantamount to conviction.  Here, the record allowed the NMCCA to correct this inappropriate shifting of the burden of proof.  The presumption of innocence has also been suspended for SHARP cases.  Colonel Wilsom was fortunate that his attorneys did a good job building this record even though the panel apparently ignored the evidence and decided that they had to find him guilty of at least one 120 offense.  I am sure there are many accused who are just as innocent, but whose trial record does not provide the required “clear and convincing evidence” or whose CCA panel acquiesces to the current climate.  I am sure that this decision and other similar decisions, such as the reversal of the West Point cadet’s 120 conviction, will lead to a call to curtail the CCAs’ authority to conduct this type of review.  I am sure it is obvious to anyone who understands the UCMJ that such a result would mean that all of the built-in protections that offered some counterbalance to the fact that military justice lacks the constitutional protections of the civilian system are being removed.  

  5. new guy says:

    Curious what Z and crew think of the posing conviction for Gallagher.  Note that it was not charged as an Art 92 orders violation, probably because General Order 1C order does NOT include posing—expressio unius est exclusio alterius?It seems there could be legitimate legislative intent to leave out “posing” (such as a Marine dragging a wounded or dead civilian out of the street and a photo is snapped of them).  The Gov instead charged a novel 134 based on the idea that although not included in Gen Order 1C, that order puts servicemembers on notice that posing is unlawful.  Thoughts?

  6. Fisch says:

    Contract Lawyer, 
    Great post.  Pretty sure that Congress cares very little about innocent men going to jail.  It has now been a year since I stopped practicing military law, but on my last few trials the panels appeared to have #metoo fatigue and the clear and convincing standard you speak of has actually moved towards the Government actually having to provide by clear and convincing evidence that the accused is guilty rather than vice versa.
    Panels like the one in Whisenhut are enough to make a defense counsel want to go MJ, but my experience with MJ’s is that your guy is going to be convicted of something. And for those cases where the MJ gave a full acquittal, then I would imagine that the panel would have done the same thing.  Plus, panels appear to know that if the CA sends a sex case to trial, then there is a better chance than other offenses that the accused is actually innocent because of the #metoo phenomenon.  It’s ironic how McCaskill and Gilibrand’s actions have made it easier for an Accused to be acquitted, than convicted, and you can win cases at voire dire just by discussing false allegations and #metoo, provided you have a solid motive for the accuser to lie.
    But, at some point, Gillibrand’s screeching about military lawyers being better than Commanders at driving the UCMJ will have to take a backseat if they attempt to take away the CCA’s review for factual sufficiency.  I guess their “sounds good” argument is that these trained lawyers were not at the trial and only reviewed the record.