Helen A. Anderson
University of Washington – School of Law
October 27, 2010

Abstract:
The direct appeal of a convicted defendant is almost never concerned with actual innocence. The system seems to privilege procedural claims, and it is extremely difficult, if not impossible, to get an appellate court to take seriously a claim of factual error such as the claim that a witness lied or was mistaken. The disconnect between appeals and actual innocence is ironic, since most jurisdictions provide funding for direct appeals, but not for collateral attacks where claims of actual innocence can be litigated. This article focuses on one aspect of appellate review that could in theory be made more likely to provide relief to the innocent through more reliable fact-finding: the harmless error analysis. It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal. According to the Innocence Project, the leading cause of wrongful convictions is eyewitness misidentification, followed by “unvalidated/improper forensics,” false confessions, and informants. Current harmless error analysis runs contrary to these findings, giving undue weight to precisely the kind of evidence often implicated in wrongful convictions, and not sufficiently considering the impact of erroneously admitted evidence on the jury. This article looks at the history of harmless error analysis, how it is applied in cases where the likely causes of wrongful conviction are implicated, and what changes can be made to reinvigorate harmless error so that courts take seriously the possibility of innocence given what we have learned through DNA exoneration’s.

Keywords: Harmless Error, Criminal Appeal, Exoneration, Innocence, DNA

Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.

In his sole assignment of error, the appellant alleges that the military judges erred in failing to instruct the members as to mistake of fact as to consent.

The court found that the military judge erred in failing to sua sponte instruct on the affirmative defense of consent.

A military judge has a sua sponte duty to instruct on an affirmative defense if reasonably raised. United States v. Davis , 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d) and 920(e)(3). “The test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire.” Davis, 53 M.J. at 205 (citation omitted).

Davis was also a Navy case involving the defense of accident and failure to instruct on an LIO.

NMCCA agreed with appellant that the affirmative defense of mistake of fact as to consent was “reasonably raised.”

Moreover, any doubt as to whether the evidence raises an affirmative defense is [to be] resolved in favor of the accused. United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981).

Steinruck (Army) involved an affirmative defense of “Agency,” (It is well established that one who acts in a transaction as a procuring agent is not a seller to that person.).

Applying the harmless error standard the NMCCA affirmed the conviction.

Finally, we note that mistake of fact as to consent was not a theory presented or argued to the members by trial defense counsel. Based on these facts and our review of the entire record, we find that the military judge’s error did not contribute to the appellant’s conviction.

The prosecution had argued two theories: a rape, or rape after the appellant was well aware that his wife had told him to stop but he continued with the sex. Apparently these facts as well as the ‘evidence’ of mistake were contained in an NCIS statement. It does not appear the appellant testified. Remember, an accused does not have to testify in order to present a defense, argue a defense, or ask for an instruction on an affirmative defense. Of course the quality of the evidence may be different. But the point I want to make is a client need not testify to get an instruction.

Oddly the NMCCA found the error may have contributed to the sentence. But they applied United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Morffeit, 63 M.J. 40 (C.A.A.F. 2006), and also affirmed the sentence of a DD, TF, three years, and E-1.

Morffeit questioned the proper factors, standards, and ability to reassess a sentence under Sales.