Coast Guard Court ***[REDACTED]*** published ***[REDACTED]***

The Coast Guard Court issued a split published opinion in an MRE 412 case today. United States v. Smith, __ M.J. ___, Dkt. No. 1275 (C.G. Ct. Crim. App. Apr. 9, 2008).

Cadet Smith of the Coast Guard Academy was convicted of extorting a female cadet to have sex with him, sodomy, and a smattering of lesser charges. A majority of Chief Judge McClelland and Judge Lodge holds that the military judge didn't err in restricting the defense's ability to cross examine the alleged victim about some previous act of misconduct and her lies about it to Cadet Smith that allegedly provided him with the leverage to extort sex from her. In dissent, Judge Tucher concludes that the cross-examination was necessary for a fair trial and that the military judge erred by precluding it.

Who's right? Who knows, because both the majority opinion and the dissenting opinion redact key information about the nature of the information. Four portions of the majority opinion are redacted, while 12 portions of the dissent are excised. The majority opinion explains that it "is undisputed that the details" of the alleged victim's misconduct and lies "fall within Military Rule of Evidence (M.R.E.) 412's exclusion." Smith, slip op. at 4 n.8. And the alleged victim, "a newly-commissioned Coast Guard officer at the time of trial, testified that she was still concerned about the story because 'I'm afraid of rumors when I go from unit to unit.'" Id. The Coast Guard Court therefore decided to "continue to treat the details as specified in M.R.E. 412(c), keeping them nonpublic, although M.R.E. 412 addresses itself to admission of evidence, implying that it applies at trials, and does not mention appellate proceedings. Portions of the briefs were sealed, and we held a closed hearing for oral argument on this assignment of error. We seal portions of this opinion in the same spirit; likewise the dissent." Id.

While it's impossible to tell precisely what's going on, I think I have a pretty good guess. And on that basis, the dissent looks rather powerful. Judge Tucher reasons:

I find it significant that the Government made first use of evidence of SR's secret during its case-in-chief. Although the prosecution was able to present evidence that SR was coerced into unwanted sexual relations with Appellant by the implied threat that he would reveal the facts of her "bad situation," the defense was prohibited from showing that this same fear of disclosure weighed so heavily in SR's mind that she relied on Appellant to disseminate false information concerning her secret. The anomalous result was that the members heard only the Government's evidence on the question of SR's motivation in submitting to Appellant's advances, while the defense was unable to complete the picture by showing the depths of her fear and the lengths she allegedly had gone – and was prepared to go – to shield the facts of her misconduct.

Id., slip op. at 15 (Tucher, J., dissenting).

Even not knowing the full story, that sounds pretty bad. My guess is that CAAF will step in to review this split decision -- and then will have to itself wrestle with how to describe the 412 evidence when it issues its resulting opinion.

One portion of the opinion on which the Coast Guard Court was unanimous also raises concerns for me. Cadet Smith was convicted of sodomy. He argued that if he wasn't guilty of extortion, then under Lawrence v. Texas, 539 U.S. 558 (2003), he couldn't have been guilty of sodomy. The Coast Guard Court, of course, found that he was guilty of extorting the sodomy but -- in a departure from the doctrine of constitutional avoidance -- proceeded to gratuitously address the Lawrence claim anyway. Smith, slip op. at 8-9. Relying on United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the Coast Guard Court holds that even if it were to find that the sodomy wasn't extorted, it would still affirm the Article 125 conviction. Why? Because the Regulations for the Corps of Cadets prohibit sexual conduct on board military installations. Smith, slip op. at 9. Because of that regulation, the court gratuitously intones, the act of sodomy "was outside any protected liberty interest recognized in Lawrence." Id. The court observes that "holding otherwise would apparently yield the anomalous result that the regulation would be enforceable as to all forms of sexual conduct except sodomy." Id. That conclusion is, of course, fallacious. Lawrence wouldn't preclude Cadet Smith from being convicted for the offense of VIOLATING A REGULATION. But that's not what the Coast Guard charged Cadet Smith with. The question here is whether under Lawrence he may be convicted of a criminal act of sodomy. Even if there had been no allegation of extortion, the Coast Guard would have been free to charge him with and convict him of violating a regulation by engaging in an act of oral sex on Academy grounds -- just as it could have convicted him of violating a regulation by engaging in fornication on sodomy grounds even though fornication itself isn't a UCMJ violation. See, e.g., United States v. Hickson, 22 M.J. 146, 150 (C.M.A. 1986). Clearly the gravamen of this particular offense was an orders violation. The Coast Guard wasn't upset about the particular form of the sexual relations on Academy grounds; rather, the Coast Guard was upset that there were sexual relations on Academy grounds at all. If the sodomy wasn't extorted, then it should have been charged as an orders violation under Article 92 rather than as sodomy under Article 125 -- with three years' less authorized confinement and possibly different collateral consequences as well.

If CAAF does review Smith and does side with Judge Tucher on the 412 issue, then the Lawrence/Marcum issue would become ripe. At that point, CAAF should recalibrate Marcum by holding that Lawrence does prohibit a conviction for the offense of sodomy where the true gravamen of the misconduct is an order's violation. And that holding wouldn't even require any redactions.