United States v. Johnson
In Johnson, AFCAA addresses two common issues, (1) the alleged Government "bait and switch" when charging and then prosecuting Article 120 offenses, and (2) comments in a victim impact statement about the effects of conduct of which the accused was acquitted.
The Specification at issue accused the Appellant of "on or about 18 September 2020, touch [GH’s] buttocks with his hand, with an intent to gratify his sexual desire, without her consent.” "Appellant did not request a bill of particulars to obtain more specific details about the conduct supporting this or any other specification." So it is initially reasonable for the defense to assume that was the event was to be litigated. What appears to have been a poor charging decision developed at trial. The evidence and prosecution case focused on a different set of circumstances to the charged language: the victim “woke up to pretty much having her bra unclasped and having her breasts touched and having a hand in her panties” and rubbing her vagina." If the prosecution had charged both events or two separate specifications some of this litigation could have been avoided and the members could have found guilty or guilty by exceptions.
On appeal, Appellant argues the Government violated his due process rights by switching the events that Specification 1 of the Charge was meant to address. Specifically, Appellant argues he, his trial defense counsel, and “everyone else involved in the court-martial believed that Specification 1 alleged a nonconsensual touching of GH’s buttocks while bending over in the kitchen to put cookies in the oven.” He further claims the inclusion of him touching GH’s buttocks on the air mattress was a “bait and switch” that deprived him of a fair trial. We find the record does not support Appellant’s claim.
Congress created four ways to charge a nonconsensual sex offense, (1), (2),(3), and (4). In reading appellate cases over the last couple of years, it is possible to discern that prosecutors a leaning toward only charging under (3) or (4), regardless of the facts and circumstances demonstrating a lack of consent. Is that really a bait-and-switch approach? The answer is no. Rather, it is a reasonable prosecution decision even though it absolves them--superficially--from having to prove, for example, that the accused "knows or reasonably should know that the other person is asleep, . . . ," or a certain degree of intoxication. This practice makes it easier to get a conviction--methinks.
From a defense perspective the court is suggesting more frequent use of requests for a Bill of Particulars. Also, it would seem appropriate to defend as if against the sleeping or too drunk theories.
Sentencing for Acquitted Conduct
There has been much debate recently about sentences that are based partly on acquitted conduct in the media, organizations and committees, scholarly articles, and the occasional appellate opinion. See, e.g.,
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook