US v. Schroder: Justice and a Moonlight Sonata

The conduct by Schroder in this case, three acts of molestation of his daughter over 15 years, would have gotten him thrown off of my baseball team before the second or third strike (unless he hit like Mickey Cochrane, no, that's only in today's sliding scale of morality world of sports, not mine). But I digress, Ludwig.

Judge Baker's opinion for a unanimous court in Schroder is about unpreserved errors. Judge Baker summed up the first issue (an MJ's instruction issue):

The military judge gave the following instruction on the use of uncharged misconduct evidence:

Each offense must stand on its own and you must keep the evidence of each offense separate. The burden is on the prosecution to prove each and every element of each offense beyond a reasonable doubt. As a general rule, proof of one offense carries with it no inference that the accused is guilty of another offense. However, you may consider the similarities in the testimony of [SJS] and [JPR] concerning any alleged offensive touching with regard to the charged
offense of rape. And you may consider the similarities in the testimony of [SRS], [SJS], and
[JPR] concerning any alleged offensive touching with regard to the offense of indecent acts with a child.

This was the extent of the military judge’s instructions regarding the use of SJS’s and JPR’s testimony admitted under M.R.E. 414.

Two instructional questions are presented. First, was the military judge required to disaggregate the instruction with respect to the three acts within the charge that qualified as
molestation and the two acts that did not? Second, and in any event, did the military judge err in his instruction as to how the members could consider the M.R.E. 414 evidence?

I thought the first question was an easy one since MRE 414 doesn't require the separation of charged and uncharged acts. As Judge Baker stated,

M.R.E. 414(a) provides that evidence of other acts of child molestation is admissible “[i]n a court martial in which the accused is charged with an offense of child molestation.” The Rule does not limit the use of that evidence to qualifying acts within a specification, but rather to prove
the specification itself. Congress could have expressly limited the Rule’s application to specific acts, but it did not do so.

On part two Judge Baker found error, but ultimately held no prejudice under the constitutional standard (harmless beyond a reasonable doubt), citing United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). I haven't done the research, but that seemed too easy a leap in assuming a constitutional dimension to the 414 issue with the instruction. Wolford is about an affirmative defense instruction and applied harmless BaRD. Judge Baker is a smart man (and I am not a smart man), but I would have liked to see his thought process--show his work a little--on that issue.

On the argument issue, Judge Baker found error in the trial counsel arguing that the case was about justice for the victim of the uncharged misconduct. I liked the wording of his holding on this point (law clerk or Judge Baker . . . you decide):

Appellant was not charged with offenses against SJS. Thus, as a matter of law, not morality, the court was not convened to render justice to SJS.

Eminently reasonable. He also held that under a plain error standard there was essentially no prejudice, citing the usual suspects: strong G case, passing reference in a long argument, G didn't get sentence it asked for, etc.

Both the instructional error and the argument error may have come out differently had trial defense counsel objected to the challenged instruction or the trial counsel's argument. Though CAAF reviewed the instructional error de novo, because the military judge misstated the law, had trial defense counsel objected the military judge may have gotten the charge right. Would findings have come out the same? If the military judge had upbraided trial counsel during closing that the members could not consider the uncharged acts in rendering justice would they have acquitted or imposed a less severe sentence?