• Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
• Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.
• Resource Management: Statutes of limitations play a crucial role in efficiently managing law enforcement and court resources. These institutions have limited resources, and prioritizing recent crimes helps them focus on cases with fresher evidence and more readily available witnesses.
• Public Interest: Statutes of limitations are not just about justice; they also consider the public interest. Allowing people to move on with their lives after a certain period, especially for less serious offenses, benefits society. This broader impact is an important aspect of these legal concepts.
• Serious crimes often have no statute of limitations. This includes offenses like murder, war crimes, and crimes against humanity.
• Statutes of limitations can be ‘tolled’ (paused) under certain circumstances. For instance, if the defendant flees the jurisdiction or if the crime is concealed, the statute of limitations may be extended. This means that the clock on the statute of limitations stops running during these periods, ensuring that the defendant cannot escape justice by simply waiting out the time limit.

The statute of limitations (SoL) in Article 43, UCMJ, limits the ability to prosecute specific charges at court-martial. While the general rule is five years, many offenses, such as sex offenses, have longer SoLs. For example:

• There is no SoL for AWOL in times of war, murder, rape, sexual assault, rape or sexual assault of a child, maiming of a child, kidnapping of a child, or any other offense punishable by death, or
• having committed a child abuse offense against a child and sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period.

It is important for military defense counsel to always check the SoL for each specification and make a motion to dismiss if appropriate. However, keep in mind several points (1) the SoL can be waived, usually as part of a pretrial agreement (PTA), or (2) can be waived or forfeited by defense counsel not making a timely motion to dismiss.

A common term in a PTA is that the accused will “waive all waivable” motions. The accused needs to understand how that bargaining chip works. And military judges have to be careful when that comes up. It is unclear what happened during the PTA discussions in Espejo. Espejo was charged with multiple sexual assaults of a child over time. He pleaded guilty with a PTA and was sentenced to 50 years confinement. The main issues were:

Statute of Limitations: There is no discussion during the trial or the PTA proceeding about the applicability of the SoL to one of the charges. It appears neither the defense and prosecution lawyers nor the judge realized there was an SoL problem with one of the specifications. Ergo, the military judge’s error in accepting a guilty plea to a charge outside the statute of limitations is a serious issue. Had the military judge asked the right questions, there’s possibly a valid waiver would have been identified and thus no issue on appeal. However, there was an error, and upon sentence reassessment, the confinement was reduced to 43 years.

Plea Agreement: The plea agreement contained language that violated the Appellant’s post-trial and appellate rights. Specifically, the language in question restricted the Appellant’s ability to appeal the case. This language was struck from the agreement. The court opinion reads as if this was the prosecution being creative in bargaining, which didn’t succeed.

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Likewise, given the victim’s subsequent testimony that the “price [she] had to pay” to attend the football game was submitting to sodomy [*13] by appellant, her statements were res gestae to the admissible Mil. R. Evid. 413 post-football game sexual assault evidence. See United States v. Metz, 34 M.J. 349, 351 (C.M.A 1992) (holding that res gestae evidence is admissible to place evidence in context); United States v. Gaddy, ARMY 21050227, 2017 CCA LEXIS 179, at *5 (Army Ct. Crim. App. 20 Mar. 2017) (summ. disp.) (“When conduct is inexorably intertwined with the alleged offense itself, it is not ‘other sexual behavior,’ but rather becomes part of the res gestae of the offense. That is, the testimony ‘was admissible as part of the same transaction as the assault.”) (citing United States v. Peel, 29 M.J. 235, 239 (C.A.A.F. 1989)).

United States v. Moore, No. ARMY 20140875, 2022 CCA LEXIS 140, at *12-13 (A. Ct. Crim. App. Mar. 7, 2022).

Res gestae evidence is vitally important in many trials. * Id. at 393. See also United States v. Peel, 29 M.J. 235, 239 (CMA 1989). It enables the factfinder to see the full picture so that the evidence will not be confusing and prevents gaps in a narrative of occurrences which might induce unwarranted speculation: Indeed, a rule limiting the admissibility of testimony like that of [victim] would provide an inducement to prefer more charges in order to avoid lack of continuity in the evidence received. At a time when multiple charges for a single transaction are already common place as a means for meeting the exigencies of proof, we are not anxious to provide an added inducement for overcharging.

United States v. Metz, 34 M.J. 349, 351 (C.A.A.F. 1992).

He does, in his proposal, make the offense a specific intent one (to which an accused’s level of intoxication may be a defense), and he does acknowledge “there will likely be constitutional challenges to the proposed crime (e.g., void for vagueness, notice, or overbreadth).”

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

Cassidy’s introduction notes the attention sexual assaults have received over recent years in reference to Harvey Weinstein, Justice Kavanaugh, and even then VP Biden. He goes on to say that,

“It is a tautology to say “We believe survivors,” because the complainant is only a survivor if her claim of victimization is truthful. “The war cry “believe women” is seen by some as a necessary corrective to a historic injustice, and by others as dangerous ideological orthodoxy if “believe women” becomes “believe all women.”

When taking up credibility, he further writes that,

“At least in the courtroom, we act hastily when we conclude that the decisions of prosecutors and jurors can be based on presumptively believing sexual assault complainants. On the contrary, the presumption of innocence and the government’s burden of proof beyond a reasonable doubt in all criminal cases remind us that jurors have an obligation to weigh the credibility of accusers carefully, and indeed that a defendant must be given leeway to cross-examine alleged victims to establish that they may be mistaken in their memory of historical events, that they might have a motive to fabricate claims, or that their perception may have been clouded by alcohol or narcotics. All members of society must be conditioned to listen with care and compassion when complainants bring forth accusations of sexual assault, so that we do not apply subconscious stereotypes or biases to reflexively discredit them. But as the “Me Too” movement grows, it is also essential that bedrock protections for the accused are not eroded in a way that predetermines a defendant’s guilt.”

The writer then goes on to address the issue of rape-shield doctrines being “stretched beyond their original purpose.” Part of his focus is on something military defense counsel see often at courts-martial–actual or suspected prior false allegations. He notes the confusing state of the law on this particular issue.

“The thesis of this article is that interpreting rape shield rules to require the exclusion of prior false allegations of rape jeopardizes the ascertainment of truth. Yet the confusing state of the law at the intersection of prior false allegation evidence and rape shield rules leaves the admissibility of this particular type of evidence highly contested and uncertain.”

Cassidy proposes an amendment to Rule 608(b) for dealing with allegations of prior false accusations. The ‘proposed amendment to state and federal rape shield rules would both narrow and broaden the traditional mechanism for impeachment by character evidence under Rule 608(b) for sexual assault complainants.” The rule would require that proposed evidence be, effectively, considered Rule 412 evidence, and as military defense lawyers now do, file a motion for a closed hearing. He argues, as your military defense lawyers often do, that the government should not be able to weaponize rape shield rules to prohibit inquiry into prior false accusations that are primarily indicative of dishonesty” because that is a disingenuous application of the rule.”

The article, therefore, presents some useful ideas and arguments for admission of evidence showing a persons potential to lie.

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Remember that before dismissing the panel at the end of the trial the military judge gives them instruction. They reminded of the secrecy of their deliberations and that they are not to discuss them with anyone unless a military judge orders that. There are several exceptions to the ban on questioning members about their deliberations. There are several exceptions to the Rule.

A member may testify about whether:

(A) extraneous prejudicial information was improperly brought to the members’ attention. United States v. Schloff, is an example of this exception (and exception (B)). During deliberations, the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial. (B) unlawful command influence or any other outside influence was improperly brought to bear on any member. See Schloff. (C) a mistake was made in entering the finding or sentence on the finding or sentence forms. We see this exception in use from time to time when the military judge believes the findings are ambiguous.

In Pena-Rodriquez v. Colorado, ___ U.S. ___, 2016 U.S. LEXIS 2424 (2016) , the Supreme Court basically held that “Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” In passing judgment the court noted that 16 jurisdictions allowed the no-impeachment rule to be pierced when there was an issue based on racial stereotyping. The court did caution however about creating exceptions to the no-impeachment rule. On the race issue,

The unmistakable principle underlying these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U. S. 545, 555 (1979). The jury is to be “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’ ” McCleskey v. Kemp, 481 U. S. 279, 310 (1987) (quoting Strauder, supra, at 309). Permitting racial prejudice in the jury system damages “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Powers v. Ohio, 499 U. S. 400, 411 (1991); cf. Aldridge v. United States, 283 U. S. 308, 315 (1931); Buck v. Davis, ante, at 22.

So as a military defense lawyer with a case at court-martial under the UCMJ, what can you do if the issue does not fit neatly into any of the exceptions and is not a racial stereotyping issue? Perhaps exception (A) might be the hole in the needle to thread. Yet, we have Missouri v. Gilbert, which says a jury verdict cannot be impeached when there is evidence the jurors held the accused’s silence against him.

The Gilbert court emphasized the limited exceptions in their state law making it only possible to have the testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations. The court observed that Gilbert was trying to create a new Missouri court-made exception for “improper consideration of a defendant’s failure to testify in reaching its verdict.” The Missouri court said it would not create this new exception.

In finding no error the court referenced Pena-Rodriguez v. Colorado, where the U.S. Supreme Court “warned that creating further exceptions to the general rule could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear … that the jury system would survive such efforts to perfect it.” Id. at 868 (internal citations and quotations omitted).

We do have some cases to review, for example,

• United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision.
• United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member’s alleged influence.
• United States v. Schloff, in which the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial.

One final note, in Iowa v. Spates, the court followed Pena-Rodriguez. In doing so the court said that appellate review had to apply an objective not subjective standard to any evidence.

[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.

It is challenging for a military defense lawyer to identify problems inside the jury box and even harder to make an appellate issue should there be some evidence of panel member misconduct. One way for the government to avoid the issue is to take special care during an argument not to raise the specter of a decision based on anything but the facts and the law. Seue, e.g., United States v. Garcia. Here the prosecution bilged the case for an accused who was found not guilty on retrial.

“This case involves numerous instances of improper argument during findings. Some were objected to and some were not. We discuss each instance separately and collectively assess whether they resulted in prejudice to appellant.”

Obviously, objections are more necessary now than before. The appellate courts are becoming more strict on waiver of objections and more parsimonious with the plain error analysis. Courts-martial under the UCMJ are supposed to be fairly decided on the evidence and the law and not on Service policy or similar doctrine such as zero-tolerance.

At least in the courtroom, we act hastily when we conclude that the decisions of prosecutors and jurors can be based on presumptively believing sexual assault complainants. On the contrary, the presumption of innocence and the government’s burden of proof beyond a reasonable doubt in all criminal cases remind us that jurors have an obligation to weigh the credibility of accusers carefully, and indeed that a defendant must be given leeway to cross examine alleged victims to establish that they may be mistaken in their memory of historical events, that they might have a motive to fabricate claims, or that their perception may have been clouded by alcohol or narcotics. All members of society must be conditioned to listen with care and compassion when complainants bring forth accusations of sexual assault, so that we do not apply subconscious stereotypes or biases to reflexively discredit them. But as the “Me Too” movement grows, it is also essential that bedrock protections for the accused are not eroded in a way that predetermines a defendant’s guilt. Most rape cases are not “whodunits” where identity is an issue. They involve interactions between two or more people who are known to each other from previous interactions-so called “acquaintance rape” situations-where the issue is what happened, not by whom. Sexual assaults usually occur in private, it is rare that they are witnessed by third-parties, and alleged attacks often leave little medical evidence or physical injury. The determinative issues in these types of rape cases are the victim’s consent and the defendant’s mens rea. Where there are no injuries and the defense is either non-occurrence or consent, the credibility of the accuser is especially central to the jury’s verdict.

Cassidy, R. Michael, Character, Credibility and Rape Shield Rules (October 8, 2020). GEO. J. L. & PUB. POL’y, Legal Studies Research Paper No. 542, at 2-3. [[1]]

[1] Available at SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3707699. The article will be published in 19 GEO. L. & PUB. POL’Y 1 (2020).

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges

Retired Army Maj. Gen. James Grazioplene on Wednesday admitted to sexually abusing his then-teenage daughter in the 1980s, in exchange for a suspension of his sentence. His daughter, Jennifer Elmore, turned 49 on Wednesday. Grazioplene pleaded guilty in a Prince William County, Virginia, circuit court to aggravated sexual battery. He has been in jail for approximately 18 months. He was expected to be released on Wednesday and will serve 20 years of probation, according to Elmore’s lawyer, Ryan Guilds.”

The case will be familiar to military justice practitioners.

Retired Maj. Gen. James Grazioplene, 69, faced an Article 32 hearing on charges he had repeatedly raped his daughter at various military postings in the United States and Germany in the 1980s. The military charges were dropped due to statute of limitations issues within the Uniform Code of Military Justice.

His case was affected by CAAF’s decision in Mangahas and others. The U. S. Supreme Ct did not have a chance to rule on CAAF’s Mangahas decision, but the military statute of limitations is pending before the Supreme Court in two cases. Here is a link to SCOTUSBlog on United States v. Briggs, consolidated with United States v. Collins. In the process it is expected that the Supreme Court will take on the issue of whether Coker v. Georgia really does apply to the military. SCOTUSBlog opines that “it will be interesting to see whether any of the justices demonstrate an appetite for the constitutional issue, or whether they think the statutory interpretation questions are dispositive.” I wonder if the Supreme Court will follow the doctrine of Constitutional avoidance–the usual practice of avoiding constitutional issues if the case can be resolved on a non-constitutional ground?

The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.

We know that some women are like men, they cheat on their spouse.

Yet investigators often ignore these knowns–in following orders to believe the “victim” and through confirmation bias.

Yet some persistent in denying this happens and presume guilt and follow confirmation bias to the desired conclusion.

Occasionally, the truth comes out. Thus this release from the federal prosecutors in Virginia.

A Chesapeake woman pleaded guilty today to lying to Naval Criminal Investigative Service (NCIS) investigators about an alleged sexual assault that occurred aboard Naval Station Norfolk. According to court documents, in July 2018 Miranda H. Overton, 21, made a report to NCIS alleging that an active duty Navy sailor sexually assaulted her. After opening an investigation into the alleged assault, the alleged perpetrator was interviewed, and he explained that he had consensual sex with Overton after they met on an online dating application. Investigators then obtained surveillance video from the day of the alleged assault revealing that Overton and the sailor kissed in the elevator immediately prior to the alleged assault. Furthermore, investigators obtained Overton’s statement during her sexual assault forensic examination where she admitted that prior to meeting with alleged perpetrator they agreed to have sexual intercourse. Investigators subsequently interviewed Overton a second time during which she admitted her allegation was false and had made another false allegation in the past. Overton admitted that she fabricated the allegation out of fear that her significant other would end their relationship if the significant other became aware that Overton had sex with the sailor. (Emphasis added.)

The statement of facts submitted to the court is available on PACER and contains additional facts of importance.

Woman-pleads-guilty-false-statement-regarding-sexual-assault[.]

• Get the SANE exam. There is quite a bit of possible information in the report valuable for defense.
• Get the CCTV or other video. You may be lucky.

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring. That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here). This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Table 1: Causal Factors (≥ 10) Causal Factor

Confirmation bias 37 Tunnel vision 24 High-profile crime/media attention 23 Management/supervision issues 22 Careless/incompetent investigation 20 Improper interrogations 20 Rush to judgment 19 Flawed forensics 15 Problematic witness/informant 14 Evidence analysis/logic failure 12 Interagency conflict/DA interference 10

Welcome to military sexual assault investigations and prosecutions.

confirmation bias, in particular, held a pivotal position in the causal structure of wrongful convictions. Faulty assumptions, probability errors, and groupthink often played supporting roles. Cognitive bias affects not just investigators, but also prosecutors, defense lawyers, scientists, military leaders, politicians-indeed, everyone.

“Believe the victim” and victim-centric interviews and investigations require the application of cognitive/ confirmation bias–IMHO deliberately. A presumption of guilt follows which reinforces CB.

Confirmation bias is a type of selective thinking. Once a hypothesis has been formed, our inclination is to confirm rather than refute it. We tend to look for supporting information, interpret ambiguous information as consistent with our beliefs, and minimize any inconsistent evidence. Types of confirmation bias include: (1) the biased search for evidence; (2) the biased interpretation of information; and (3) a biased memory (selective recall). Confirmation bias can cause a detective to interpret information in a biased manner-evidence that supports the investigative theory is taken at face value, while contradicting evidence is skeptically scrutinized. Other manifestations of confirmation bias include the failure to search for evidence that might prove a suspect’s alibi, not utilizing such evidence if found, and refusing to consider alternative hypotheses.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

United States v. Kangich, 78 M.J. 304 (C.A.A.F. 2019).

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of the granted issue, __M.J. __ (C.A.A.F. 2019), the opinion of the United States Army Court of Criminal Appeals, United States v. Davis, No. 20160069 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that the military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

The ACCA unpublished opinion of 16 August 2018, ARMY No. 20160069, in “Nicholas E. Davis” is here.

I conclude the instructional issue must have been in the Grostefon?

We address two assignments of error, with multiple subparts, one of which merits relief. Appellant personally raised seven matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), one of which is also an assigned error. The remaining Grostefon matters, after due consideration, do not warrant discussion or relief.

United States v. Davis, No. ARMY 20160069, 2018 CCA LEXIS 417, at *2 (A. Ct. Crim. App. Aug. 16, 2018).

CAAF granted on the following issue.

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT FOR THE OFFENSE OF INDECENT VISUAL RECORDING AND THE DEFENSE OF MISTAKE OF FACT AS TO CONSENT.

United States v. Davis, 2019 CAAF LEXIS 223 (C.A.A.F. 2019).

Here’s the link to United States v. Macdonald.

Appellant was convicted of sexual assault by bodily harm on a nonconsent theory. The military judge in his case gave no specific mens rea instruction beyond the standard mistake of fact defense, which provides a defense if the accused had an honest and reasonable (nonnegligent) belief that consent was obtained. Appellant, however, contends that Elonis v. United States, 135 S. Ct. 2001 (2015), required the military judge to instruct the members that a mens rea of at least recklessness with regard to consent was necessary for conviction. We granted review to determine the required mens rea for sexual assault by bodily harm, and conclude that Congress clearly implied a general intent mens rea for that offense.

[T]he Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375 (Alaska June 14, 2019) decided that part of its state’s Sexual Offender Registration Act violates due process. Here is how the majority opinion starts and concludes:

This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASOR Aviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness…. The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad. The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence. Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few. Despite that, I continue to argue that SOR is more than a collateral consequence. As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

Mr. Murray argues that we should reconsider the definition of collateral consequences and how they affect sentencing and most importantly recidivism and reintegration. Here is the abstract.

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation. Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints. This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order. Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

Take a look, I am looking for ways to bolster my trial motion on SOR.

In this case, the prosecution sought to use evidence of different allegations of a sexual offense to show that, “Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.”

“The crux of Appellant’s position throughout trial and on appeal is that the sexual conduct alleged in each specification was separate and distinct and must stand on its own. Appellant contends that the allegations were not sufficiently similar to show a common plan and that allowing evidence of one charged offense as evidence of a separate charged offense was tantamount to allowing the factfinder to consider evidence of Appellant’s propensity to engage in sexual misconduct. Appellant, citing United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F 2016), renews on appeal his claim that the military judge misapplied Mil. R. Evid. 404(b) and Mil. R. Evid. 403 and improperly allowed charged offenses to be used as propensity evidence to prove other charged offenses?

The AFFCA found that the second prong of the Reynolds test was incorrectly applied and found error for some of the allegations. The point here is to watch for the prosecution trying to do an end-run around Hills (and Hukill) by trying to argue Mil. R. Evid. 404(b) allows different specifications to be used in supporting other specifications.

There are some cases where it might be in the defense interest to argue that evidence should be admitted only under Mil. R. Evid. 404(a) and avoid the sting of Mil. R. Evid. 413, but not, it would seem in a judge alone case.

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

Briefs will be filed under Rule 25.

Here is a link to the AFCCA opinion., from which this appeal flows. However, there is an earlier opinion here which is relevant to the granted issue.

Investigation by the Department of Homeland Security and the Air Force Office of Special Investigations (AFOSI) revealed Appellant engaged in online conversations, image sharing, and electronic mail (email) correspondence with a Canadian law enforcement officer in a chat room on a pornographic website. Further investigation revealed Appellant had engaged in similar online conversations with a number of others. The content of the conversations involved extremely graphic descriptions of sexual abuse and degradation of children. On many occasions, Appellant asked for photographs of the alleged abuse. Appellant admitted to engaging in various online chats.

He was charged with violating Article 133, along with CP allegations. AFCCA noted that:

There is no requirement that the conduct underlying an alleged violation of Article 133, UCMJ, be criminal on its own. United States v. Norvell, 26 M.J. 477, 481 (C.M.A. 1988). The underlying act may be constitutionally protected in civilian society but not necessarily so for military members, and therefore be criminal under Article 133, UCMJ. United States v. Forney, 67 M.J. 271, 275 (C.A.A.F. 2009). Purely private speech can serve as the basis for a charge under Article 133. United States v. Hartwig, 39 M.J. 125, 128 (C.M.A. 1994). Additionally, private conduct may constitute an offense under Article 133, UCMJ. United States v. Moore, 38 M.J. 490, 493 (C.M.A. 1994).

As for SPC KP [a witness to the alleged MSA], our doubts about her testimony are many. First, several witnesses shared their low opinion of SPC KP’s character for truthfulness, as well as SPC KP’s low reputation within the unit on this important trait. Second, SPC KP had a motive to fabricate, as the trauma she claimed to have suffered from witnessing this event were key factors in getting an exception to policy in order to obtain a service animal and achieve her longstanding wish to move out of the barracks. Third, her testimony was impeached in several instances by other witnesses. For example, SPC KP claimed that the morning after the incident, she told PFC HM everything she had witnessed in the bedroom. That is, what she related in her trial testimony was what she reported to PFC HM the morning after the party. By contrast, PFC HM was clear in her testimony that both SPC KP and PFC LC reported the next morning only that appellant was on top of PFC HM. Nothing more. In fact, when the incident was reported a few months later, PFC LC was surprised by the additional details related to SHARP personnel by SPC KP. In another example from the trial, SPC KP denied asking SPC MF about his Article 32 testimony, a denial later contradicted at trial by PFC MF. For these and other reasons, we find SPC KP’s testimony was not credible.

United States v. Sanders, ACCA 2018.

The “trauma” was from–

We find PFC LC’s testimony was credible. There is no dispute that she was the first person to enter the bedroom on both occasions, so she was best placed to observe appellant and PFC HM. Although PFC LC was intoxicated, her recollection of what she saw in the bed was clear. Since PFC LC was the person who pulled appellant out of the bed, she too was in the best position to observe whether appellant was engaged in intercourse with PFC HM and whether appellant was penetrating PFC HM’s vagina. What PFC LC observed was appellant, with his pants down, asleep or passed out, on top of PFC HM, with her pants down, asleep or passed out. Nothing more.

As military defense counsel, we have had to deal with and address the “expansion” of CP into what is often referred to as erotica. Ms. Hessick notes an expansion of CP law to cover possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.

These prosecutions have expanded the definition of the term CP well beyond its initial meaning. What is more, they signal that CP laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

She proceeds on a theory that, “This focus on the subjective thoughts of defendants is problematic. It changes CP law from an endeavor designed to protect children from harm to an effort to punish those individuals who are sexually attracted to children. This shift is inconsistent with CP law’s constitutional origins, and it creates incentives that may ultimately leave children less safe.”

She proceeds with the history of such laws and their expansion, some new statutory definitions, a critical analysis, and a conclusion that, “For now, the legal battle against CP rages on, despite the fact that current tactics do not appear well suited to actually protecting children from sexual abuse.

She does not discuss some statistics about possessors of CP and if they have a likelihood of actual offenses against a child. Certainly, many child offenders possess and sometimes use CP to aid in their crime, but that does not prove the reverse. This is not to say that possession of CP is not a risk factor. She does however address this in a different article. Disentangling CP from Child Sex Abuse. 88 WASHINGTON U. L. REV. 853 (2011).

Recent years have seen a significant increase in the criminal penalties associated with possession of CP. The new severity appears to be premised on arguments that blur the distinction between those who possess images of CP and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing CP increases the risk that an individual will sexually abuse a child, and arguments that those who possess CP are abusing children undetected. This Article identifies instances where possession of CP and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue and that when law enforcement statistics aggregate possession and child sex abuse, the public may be misled into believing that law enforcement is successfully battling child sex abuse. The Article concludes that the modern trend of increasing sentences for possession of CP ought to be reviewed, and it suggests several possible areas of reform.

She concludes:

Those who support the modern trend of increased sentences by conflating possession of child pornography with child sex abuse would likely dismiss many of the arguments in this Article. The lack of empirical support for a link between possession of CP and child sex abuse does not, in their view, suggest that lengthening sentences for possession is improper; rather, they see it as an obligation of those who would have shorter sentences to demonstrate that there is no link.208 Because the crime of child sex abuse is so terrible, and because longer sentences might promote public safety, those who support the modern trend have a very appealing and emotionally powerful argument in favor of modern sentencing severity.

See also, Jérôme Endrass, et. al., The consumption of Internet child pornography and violent and sex offending. 9 BMC Psychiatry 43 (2009).

Consuming CP alone is not a risk factor for committing hands-on sex offenses – at least not for those subjects who had never committed a hands-on sex offense. The majority of the investigated consumers had no previous convictions for hands-on sex offenses. For those offenders, the prognosis for hands-on sex offenses, as well as for recidivism with CP, is favorable.

Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.

Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk. OK, where are the bar receipts? No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available. Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts. The receipt tells you a number of things: time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?) Or, how about the video from the base entry point when the CW walks or drives or is driven on base? Is it possible the video helps show how unintoxicated the CW was or wasn’t? CCTV? Remember, the MCIO doesn’t usually care about this stuff.

“To many this would seem a clear-cut case of sexual assault [especially if ordered to believe the victim]. However, a case is not determined [except in the military] on what one believes, but by what the investigation shows and that can be proved [lordy, lordy].”

Hello!

So what really happened that evening? In a case like this of “he said, she said,” investigators look to the forensic evidence to help them piece together what may have actually happened. The investigation and exploration of the totality of the evidence collected are critical to unravelling the allegations and discerning whether charges can be filed. Therefore, when DNA is not available or not probative, other forensic evidence can help establish the facts. The most important take-away is that a case should be developed using the totality of the evidence. (Cleaned up.)

W-T-R: Sexual Assault Cases: Exploring the Importance of Non-DNA Forensic Evidence. National Institute of Justice Journal, Issue No. 279.

In New York a defendant can be forced to register as a sex offender for the rest of his life based on accusations a jury rejected. So the state’s highest court ruled last week in a case that illustrates how fear and loathing of sex offenders lead to results that would be recognized as unjust and illogical in any other context.

See more at reason.com

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress’s delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline “The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal.”

So begins a post by Professor Berman of Sentencing Law & Policy blog.