United States v. Gutierrez: Will the third time be a charm?

PFC Juan Gutierrez was court-martialed for assault with intent to commit rape. The victim was an intoxicated Soldier whom PFC Guiterrez had helped into her room. According to the victim's testimony, PFC Gutierrez initially left her room but then reentered and initiated unwanted sexual activity until she pretended to vomit and fled the room. According to him, he kissed her and touched her upper body before she said, "No stop." He then grabbed her and touched her body before stopping.

The members were instructed on not only assault with intent to commit rape, but also the LIOs of indecent assault and assault consummated by a battery. The military judge gave a mistake of fact instruction as to assault with intent to commit rape and indecent assault, but not assault consummated by a battery. The defense counsel expressly stated that the defense didn't request a mistake of fact instruction as to the battery LIO.

The members convicted PFC Gutierrez of only assault consummated by a battery.

When the case was first before ACCA, that court reversed, ruling that the military judge was required to instruct on mistake of fact as to the battery as well. United States v. Gutierrez, 63 M.J. 568 (A. Ct. Crim. APp. 2006). The Judge Advocate General certified the case and CAAF reversed, ruling that the trial defense counsel affirmatively waived that instruction. United States v. Gutierrez, 64 M.J. 374 (C.A.A.F. 2007).

On remand, ACCA again reversed the conviction, this time holding that the trial defense counsel provided ineffective assistance of counsel by affirmatively waiving the instruction. United States v. Gutierrez, No. ARMY 20040596 (A. Ct. Crim. App. Oct. 31, 2007). The Judge Advocate General of the Army again certified the case to CAAF and CAAF today again reversed ACCA. United States v. Gutierrez, __ M.J. ___, No. 08-5004/AR (C.A.A.F. May 27, 2008).

CAAF split 3-2 in reversing. Judge Stucky wrote for the majority, joined by Judges Erdmann and Ryan. Chief Judge Effron and Judge Baker wrote separate dissents.

The majority held that the defense had not carried its burden of demonstrating that any deficiency in the defense counsel's performance prejudiced the accused. The court held that ACCA had erroneously shifted the burden to the government to demonstrate lack of prejudice. CAAF ruled: "Even if the military judge had given a mistake-of-fact instruction as to assault consummated by a battery, it is just as likely that the members would have convicted as it is that they would have acquitted. Thus, Appellee failed to carry his burden to show a reasonable probability that the result would have been different." Gutierrez, slip op. at 8.

CAAF once again returned the case to ACCA for Article 66(c) review. Will the third time be a charm?