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Highest Military Appeals Court Finds Violation of Due Process in Sexual Assault Cases

By Peter Kageleiry, Jr.

PRESUMPTION OF INNOCENCE

An accused is presumed innocent until proven guilty. This familiar concept springs from the Due Process Clause of the Fifth Amendment to the U.S. Constitution and is an essential part of a fair system of justice. Due Process and the presumption of innocence restrains the government from using evidence of “other acts . . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Mil. R. Evid. 404(b). This prohibition against using an accused’s alleged propensity to commit crimes as a reason to convict him of a charged offense is fundamental to protecting the presumption of innocence. However, Congress has seen fit to create exceptions to this rule in sexual assault cases.

MILITARY RULE OF EVIDENCE 413 & PROPENSITY

In 1994, Congress created Military Rule of Evidence 413. MRE 413 encourages the admission of evidence that an accused committed an uncharged sexual assault in order to prove that he committed a charged sexual assault. Six years later, in United States v. Wright, 53 M.J. 476 (CAAF 2000), the Court of Appeals for the Armed Forces (CAAF) held, when properly applied, MRE 413 does not violate the Due Process or Equal Protection Clauses. Fast-forward fifteen years to see how overly aggressive prosecutors have been taught to misapply MRE 413.

OVERZEALOUS PROSECUTION & MRE 413

Military prosecutors have taken MRE 413 to an absurd extreme by arguing that one charged sexual assault offense may be used to prove guilt of another charged sexual assault offense. Prosecutors add sexual assault allegations to a charge sheet so that they may then argue to the court members that the accused is guilty because he committed more than one charged offense. A circular and absurd application of MRE 413.

UNITED STATES V. HILLS

For several years, without guidance from CAAF, military judges and the lower service Courts of Criminal Appeals have upheld the government’s use of charged misconduct to prove other charged misconduct. On June 27, however, CAAF, stepped in. In United States v. Hills, CAAF held that the prosecution is not permitted to use charged misconduct as propensity evidence because such application of the rule violates the presumption of innocence. The Court explained, “It is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent.”

POTENTIAL FOR RELIEF – FOR SOME BUT NOT ALL

Does this change in the law mean every service member previously convicted based on the misapplication of MRE 413 will get a new trial? Unfortunately, no. Cases that have already gone through the direct appeal process will not be affected by the recent Hills opinion, meaning that if the appellate process is over, the military appellate courts have lost jurisdiction and will not apply the holding in Hills retroactively. If, however, a sexual assault case is still on direct appeal, it is not too late to ask the appellate courts for relief based on the ruling in Hills.

STANDARD ON APPEAL

Convincing an appellate court that a conviction violates the principles enunciated in Hills, is just the first step in getting a conviction overturned on direct appeal. After finding error, an appellate court tests for prejudice. Article 59, UCMJ, states, “A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” Depending on the specific type of error, appellate courts apply different legal standards for determining whether or not a convicted service member is entitled to relief. A significant aspect of the Hills decision is CAAF’s application of the “Harmless Beyond a Reasonable Doubt” (HRBD) standard in analyzing the Constitutional error the trial court made in allowing the prosecution to use one charged offense to prove another. Because the error implicates Due Process, the government bears the burden of demonstrating that the error was “Harmless Beyond a Reasonable Doubt.”

MONTH OR YEARS TO SEE ALL OF THE FALLOUT

When CAAF issues a ruling overturning a long-standing trial practice, the system takes many months or even years to sort through the resulting train wreck of cases. See for example the “trailer cases” after CAAF issued United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). How the military appellate courts will apply Hills to different fact patterns has yet to be settled and will be the subject of appellate litigation for months and years to come. On July 20, the Air Force Court of Criminal Appeals applied the holding in Hills to a case with multiple alleged victims – in United States v. Harrison, the Court found error in the government’s use of one charged sexual assault to prove another charged sexual assault, but further found that the error was harmless beyond a reasonable doubt because of other evidence (admissions by the appellant) supporting a finding of guilt. This multi-step legal analysis combined with varying fact patterns means every case is different and every case is a battle to obtain relief.

ADVOCACY FOR RELIEF

It is critical to have an experienced, dedicated military appellate attorney on your side that knows military appellate law and its ever-changing battlefield, and will fight for your rights to leverage all possible avenues for relief.