Saturday, June 15, 2019

Whisenhunt and public confidence

USA Today has this op-ed by a Naval Academy graduate who reports that her faith in the military justice system has been shattered by the U.S. Army Court of Criminal Appeals' June 3, 2019 decision in United States v. Whisenhunt. It's easy to be dismayed that an appellate court with only a cold record of trial acquitted after a panel convicted and adjudged a lengthy prison sentence after hearing from live witnesses. And the CCA's power is, if not unique in American criminal justice, at least unusual. But . . .

Before having a crisis of confidence in the system or even just in the part of it that gives the CCAs this power, it is incumbent on commentators to explain what they made of the specific reasons given by the Army Court's unanimous decision in Whisenhunt:
We have carefully reviewed the evidence and, taking into consideration that the panel saw and heard the witnesses and we did not, we nevertheless conclude that appellant’s convictions are factually insufficient. At a minimum, affirming these convictions would require us to reach a number of conclusions that are inadequately supported by the evidence.
The defense theory was that appellant and LM engaged in a consensual sexual encounter while taking active measures to avoid detection. In our view, the circumstantial evidence in support of this defense theory severely undercuts the government’s case. For example, to be convinced of appellant’s guilt, we would have to conclude beyond a reasonable doubt that the sexual acts could plausibly occur (and would not be discovered) without active cooperation from both parties. Given different circumstances, this might not be a stretch. But in the unique circumstances here – which include a bivy cover, a noise-producing space blanket, and numerous squad mates in very close proximity – it is hard to conclude beyond a reasonable doubt that appellant could complete the charged offenses without cooperation or detection.
It is even harder to conclude beyond a reasonable doubt that appellant would anticipate that LM would not make any reflexive noise or movements upon being awakened, which would have alerted multiple others to his criminal activity. This is particularly true when there is no evidence that appellant threatened LM or took any steps, such as covering her mouth, to prevent an outcry. Additionally, appellant would have needed to anticipate that LM would not report his crimes at a later date, when the record is devoid of any evidence that LM could not identify him, that she was incapacitated, or that he had threatened or coerced her. Furthermore, appellant left his semen on LM’s bivy cover, and there is no evidence that he tried to remove this evidence.
The scenario outlined by the defense and the record leaves us with a fair and rational hypothesis other than guilt. United States v. Billings, 58 M.J. 861, 869 (Army Ct. Crim. App. 2003); see also Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 8-3-11 (10 Sep. 2014). Ultimately, we are not required to determine categorically whether appellant or LM’s testimony is true, or even whether their testimony is more likely true than not. We do not review convictions under a preponderance of the evidence standard. Instead, we may only affirm convictions that we are ourselves convinced have been proven beyond a reasonable doubt. We are not so convinced in this case.
The service courts do not exercise their appellate-acquittal power frequently or casually. When they do exercise it, they explain their reasons. The Army Court did so here. From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, the reason the Army Court gave seems cogent. That is not to say that more doesn't need to be done to deter sexual assault at the service academies and throughout the armed forces; the Pentagon has said as much (for years). Structural reforms involving the role of the commander are required, not only to foster greater confidence in the administration of justice in sex cases but also across the board. There might be less need for factual sufficiency review if, for example, disposition decisions were made by prosecutors outside the chain of command and if jurors were not selected by commanders instead of an independent court-martial administrator. The discussion should continue, and broaden, but Whisenhunt doesn't mean we should declare the system rigged against complainants.

1 comment:

  1. Two of the three judges in Whisenhunt were female - not that gender has any bearing on the decision. But it certainly wasn't a "good old boys" club decision. Second, in NY, the intermediate appellate courts, i.e., the Appellate Divisions, have per NY's Criminal Procedure Law, Sec. 470.15(1), the same powers as do the CCA's:

    "1. Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant."


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