Wednesday, June 11, 2008

CAAF sets aside rape conviction as legally insufficient

We previously noted that while most legal sufficiency claims fail at CAAF, a non-trivial percentage of such claims actually succeed. CAAF's unanimous opinion in United States v. Bright, __ M.J. ___, No. 07-0269/AR (C.A.A.F. June 9, 2008), provides more support for that proposition.

Judge Erdmann wrote for the court, holding that the evidence was legally insufficient to convict Sergeant First Class Bright of raping a trainee. In a highly fact-intensive ruling, CAAF essentially held that threatening to take away a trainee's weekend pass and other abuses of First Sergeant Bright's position of authority over her weren't sufficient to satisfy the "by force and without consent" prong of the old Article 120.

CAAF emphasized that First Sergeant Bright's conduct was nevertheless criminal: "We do not question that Bright's conduct -- an egregious abuse of his position for which he was charged and convicted of maltreatment -- was criminal. However, we cannot conclude that a reasonable factfinder could find that the particular circumstances involved in this case show that 'resistance [was] overcome by threats of death or great bodily harm' necessary to sustain a conviction for rape." Id., slip. at 19 (alteration in original).

Based on the ACCA docket number, it appears that First Sergeant Bright has already served his entire five years of confinement. In fact, it appears that the case was docketed with ACCA in 2002 and that ACCA summarily affirmed in December 2006. Had the military justice appellate review system consisted of a single-tier of CAAF review, perhaps First Sergeant Bright's conviction would have been overturned before he had served his entire term of confinement.


Anonymous said...

Looks to me like CAAF decided this case on factual sufficiency, not legal sufficiency. But isn't that power reserved for the CCAs? Another CAAF power grab.

CAAFlog said...

2335 Anon,

That's a point on which reasonable minds can differ, but I disagree. It seems to me that what CAAF is really saying is that the kind of threats and abuse of power that occurred here don't meet the legal requirements for rape. CAAF didn't seem to be making any calls about disputed factual questions. Rather, it seemed to be saying that even if the facts as presented by the prosecution were true, that simply isn't rape. And such a conclusion is an appropriate exercise of legal sufficiency authority.

That view is supported by the fact that the decision was unanimous. CAAF's questionable jurisdictional rulings have been divided. The fact that all five judges agreed with the outcome is pretty strong circumstantial evidence that the outcome was within CAAF's institutional power and legally supportable.

Anonymous said...

Wonder how this would have played out if charged under the new 120 scheme?

Anonymous said...

And why was is it troublesome that he wasn't let out of prison early? Doesn't he deserve severe punishment for what he did? Someone's daughter enlisted in the Army and was treated that way. The military needs good order and discipline and society needs general deterrence and specific deterrence to prevent this kind of thing (as much as possible) in the future.

cgittins said...

I was the appellate lawyer for SFC Bright. The case was not a rape case and CAAF finally set the record straight on that issue, thankfully. The real point of the appellate review of Bright's case is the intellectual bankruptcy of the Army Court of Criminal Appeals. I raised legal and factual insufficiancy at ACCA. ACCA summarly affirmed -- no opinion. Then 5 judges of CAAF uninimously hold that the evidence was legally insufficient to convict -- a ruling I might say that is a no brainer when one asctually reads the uncontradicted facts of the case. How can it be that the Army Court was unable to analyze and decide an issue that gave the CAAF court very little pause? This kind of case tends to support the somewhat widely held view that the military appellate courts are not up to the task they have been chartered by Congress to perform. I personally believe that the military appellate judges, with few exceptions who generally get reassigned to more favorable duty, believe it their mandate to support the Government and even the clearly erroneous rulings of Military Judges. Color me jaded.

Cloudesley Shovell said...

Whether there are one or two levels of appellate review won't change the timeliness of appellate review if any court responsible for that review sits on a case for 5 years.

There is no reason why any case cannot be fully briefed and ready for decision within 120 days of the date of conviction. There is further no reason why the CCAs cannot decide every case within six months of receiving it.

Anonymous said...

CAAFlog and Mr. Gittins,
You are two solid practioners of military justice who, unfortunately, hold the correct, but minority view on legal sufficiency challenges.

Believe it or not, the received wisdom and bogus training point commonly peddled in the military appellate shops about legal sufficiency is something like a sterile elements checklist. The dumb govenment attorney is just supposed to go through the elements and then ask whether or not the element could have theoretically been met. Its such a low threshold. But its good enough for government work.

I'm glad that CAAF threw out a lifeline for the zealous defenders who believe in challenging what "no reasonable factfinder" could find.

Mr. Gittins, you earn your pay.

Anonymous said...

Um, he's still guilty of "two specifications each of forcible sodomy, maltreatment, and violating a lawful regulation by wrongfully having a relationship with a private; one specification each of attempting to violate a lawful general regulation by wrongfully asking a private to have a relationship, adultery, and impeding an investigation. These charges against Bright were based on allegations of improprieties with three different female trainees. Private W, the alleged victim of the rape specifications, was also named in the forcible sodomy specifications, one maltreatment specification, one disobedience specification, and the adultery charge." FN1. So Mr. Gittins' client is still a registered sex offender, still guilty of sexually mistreating the Soldiers in his care, and still deserving of his 5-year sentence (which I'm sure the "intellectually bankrupt" judges at ACCA will uphold, given that CAAF told them they can reassess without a sentence rehearing (Page 20)). Oh yeah, and he's out whatever money he spent for this "victory". Way to "earn your pay" Mr. Gittins.

cgittins said...

You go with what is available and likely to get a grant at CAAF. I raised all the issues at ACCA. Maltreatment of detainees was quite a stretch -- the women seemed not to mind while they were benefitting; but that is not atypical either.

For 22 years, since I graduated from law school, including when I was on active duty, I have always spoken on the record. I have never found it necessary to hide behind "anonymous." Anonymous should find a little courage and quit "hiding." If it is worth saying and you have the courage of your convictions, it is worth being on the record.

I didn't try the Bright case; had he hired me for the trial, I doubt much of what I had to deal with on appeal would have required appellate work at all. He got his money's worth; if you have any question, ask him.


Bill Buckner said...

9:42 Anonymous, um, thanks, um, for pointing out his other crimes. I guess your point is that once somebody is guilty of a bunch of stuff, we need not worry about all the details?

No? Then what was your point?

The post was about legal insufficiency. The topic was the value of raising this issue at the service courts and at CAAF. You almost imply that Mr. Gittins need not have raised legal insufficiency because the accused was still guilty of other crimes. If this was your main point, you are - I hate to be mean - just not that intelligent and not a very good attorney. So your choice to remain anonymous was wise. But, your point was also irrelevant...and I'm not sure you even realize it. Sad.

Good work, Mr. Gittins. If we were to believe Anon's silly post, we should fault you for not solving world hunger. Its too bad the accused didn't have you as his defense counsel at trial.

Anonymous said...

Actually, there are three points.

1. Mr. Gittins and his groupies shouldn't break their arms patting each other on the back. Crowing about this like something got accomplished is just sad.

2. Mr. Gittins comment about the ACCA judges was idiotic.

3. It's a blog people; get over yourselves.

Anonymous said...

8:56 Anon,

If I can take out some of the condesension in your post, I take your overall point.

You are correct that sometimes the defense bar celebrates seemingly minor vicoties.

There are 2 reasons for this:

1) Blogs tend to be "oppositional forums." Those with majoritarian, conventional views, usually don't have a penchant or need for commentary. If you think that everything the Government does is satisfactory, you can read SJARs and Court Opinions and just nod in agreement. No need to blog.

2) In a system that results in 98% convictions, defense victories are rare. So we tend to look closely at how and why these victories were achieved. And there is a bit of intellectual problem solving, reverse engineering. I congratulate Mr. Gittins for good lawyerly work.

Your comments, however, seems to go back to the refrain: "yeah, but he's a criminal." Honestly, anon, I think we all get that. Really. Even us defense attorneys - who celebrate cerebral victories - honor the adversarial system and want bad guys punished (proportionally) for their crimes.