Court of Appeals for the Armed Forces--Horne

In Horne, the AFCCA writes that the Appellant was found guilty by an "enlisted" panel of sexual assault by causing bodily harm. He was sentenced to RiR2E4 and a DD. He raised five issues.

(1) TC and SVC created an appearance of unlawful influence by interfering with the attempt by the Air Force Office of Special Investigations (AFOSI) to interview JC’s spouse. There was extensive litigation on the issue. The MJ determined the defense failed to meet the initial requirement of showing "some evidence of unlawful influence." However, the MJ went on to suggest that were there enough and had the Government failed to disprove unlawful influence, "“the present status of this case and its current participants” together with all the facts and circumstances of the entire proceedings “prove beyond a reasonable doubt: (1) that there is no intolerable strain upon the public’s perception of the military justice system; and (2) that an objective, disinterested and fully-informed observer would not harbor a significant doubt about the fairness of the proceeding.”" The AFCCA ultimately finds against Appellant. The court makes many interesting comments, including 

[A]lthough perhaps improperly carried out, as indicated above the apparent motives behind the actions of Capt JP and Capt AS were not illegitimate. The military judge found as fact that “[n]o effort or failure to act by any participant, including [Capt AS] and [Capt JP], was driven by a motive to gain some unfair advantage or harass the accused,” and this finding was not clearly erroneous. 

(2) Conviction on a theory of sexual assault that was not charged violated his right to due process. This appears to be a recurring issue.

Appellant argues that his Fifth Amendment due process rights were violated because he was convicted on a theory of sexual assault that was not charged. In his view, he was convicted of sexual assault because the court members found that JC was incapable of consenting due to intoxication instead of the charged bodily harm theory. Appellant argues the Government should have charged the two theories in the alternative but by selecting only a bodily harm theory “it allowed the members to arbitrarily impart their subjective sense of how impaired they believed [JC] was at the time of the alleged offense.” 

(3) The MJ abused his discretion by allowing irrelevant evidence of JC’s level of intoxication. This is related to the charging decision above.

(4) Legal and factual insufficiency.

(5) The MJ erred by precluding cross-examination of JC under Mil. R. Evid. 412 regarding other sexual behavior with Appellant. The court: "We assume without deciding that the military judge’s ruling limiting the cross-examination of JC was influenced by an erroneous view of the law and was an abuse of discretion. However, we find the assumed error was harmless beyond a reasonable doubt so relief is not warranted."
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In addition, there were 16 Grosty's.

At CAAF, the court begins,

​Prior to the trial in this sexual assault case, a trial counsel and a special victim’s counsel (SVC) took actions to dissuade the Air Force Office of Special Investigation (AFOSI) from interviewing a witness whom the trial counsel believed might provide exculpatory evidence. Appellant contends that these actions constituted apparent unlawful command influence.*

* Keep in mind any changes to UCMJ art. 37, especially regarding apparent UCI.

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 trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

CAAF cites 15 "facts and circumstances" Appellant raises to show the Government has not met a high burden.

(1) TC's “intentional abandonment of evidence believed to be exculpatory in nature.”

(2) TC’s improper “influence over an independent investigative agency."

(3) Involvement of “judge advocates—persons who should know better” in the misconduct. (See (1) above.)

(4) TC’s ceding of the Government’s “sovereign authority to the SVC and the named victim to determine which witnesses to interview.”

(5) How the SVC leveraged his role “to become the most influential decision maker in what is statutorily designed to be a commander-driven military justice system.”

(6) The “highly politicized climate surrounding sexual assault in the military.”

(7) The “significant” role of “Article 120, UCMJ, litigation . . . within the Armed Forces.”

(8) The “lack of . . . protections to check prosecutorial overreach” in the military justice system.

(9) The “arbitrary [case] processing metrics . . . used to bolster officer performance reports” in the Air Force JAG Corps.

(10) The “nominal” remedial actions taken by the Government in response to the misconduct. 

(11) The dissenting opinion at the AFCCA on the issue of the factual sufficiency of the evidence against Appellant.

(12) The “prosecuting legal office’s lack of a sexual assault conviction in the two years leading up to Appellant’s case” and trial counsel’s “involvement in those acquittals.”

(13) The improper collaboration of the trial counsel and special victim’s counsel “regarding the substance of the named victim’s sworn witness statement.”

(14) The departure from the norm that “charging decisions are typically made after review of the evidence.”

(15) The appearance that the “purpose and timing of the [military judge’s] written ruling primarily served as insulation against appellate scrutiny” Appellant contends that these facts and circumstances taken together establish at least a reasonable doubt about whether the conduct at issue created an “intolerable strain” on the public’s perception of the military justice system.

In response the CAAF suggests various reasons the government has demonstrated the actions of the TC and SVC did not put an intolerable strain on the public's perception of the military justice system. 

• The errors were subject to the full sunlight of litigation at trial where all involved testified.
• Recusing the TC and SVC from further participation in the case.
• The MJ's finding of no intent or improper motivation, rather it was a "regrettable mistake," by supposedly seasoned and experienced practitioners.
• No prejudice to the case. An apparent loss of memory of the witness is, under the circumstances here, insufficient.

Senior Judge Ryan concurs, reemphasizing her view that the accused must always show actual prejudice where UCI is an issue.

Cheers, Phil Cave