United States v. Collier, No. 08-0495/NA, is available online,
here. In the 4-1 opinion (Judge Baker dissenting), CAAF reverses NMCCA in a case concerning the right to present a defense. Helpful summary courtesy of Judge Ryan'sBLUF opinion (more later):
This case presents the question whether the military judge erred in granting the Government’s motion in limine prohibiting Appellant’s defense counsel from cross-examining HM2 C, the main Government witness, about an alleged homosexual romantic relationship between her and Appellant and from introducing any evidence of such a relationship. While the military judge did permit cross-examination about a close friendship, the defense that Appellant wanted to present was that HM2 C framed Appellant for larceny as a result of their romantic relationship ending badly. Because of this ruling, Appellant was free only to assert the motivation of an angry friend rather than a disappointed lover; as the Government then argued in its closing, the motivation of an angry, vengeful friend “strains all logic; it’s just not credible.”. The military judge’s ruling prevented Appellant’s counsel from fully exploring HM2 C’s bias and motive to misrepresent the truth, and precluded Appellant from presenting her theory of the case.
Under the circumstances of this case, including the fact that in its closing argument the Government exploited the evidentiary limitation it requested to criticize the theory with which Appellant was left, we find this constitutional error was not harmless beyond a reasonable doubt.
Judge Ryan's analysis finds some evidence of the relationship existed and then moves on to unfair prejudice. Her unfair prejudice analysis contains this surprising (at least to me) passage:
This Court has not allowed the military’s policy on homosexuality to prevent evidence of homosexuality from being used against an accused. See Phillips 52 M.J. at 272-73 (permitting trial counsel to offer evidence that the accused was engaged in a homosexual relationship). And we see no principled reason to prevent an accused from using this same type of evidence to potential advantage, particularly where, as here, Appellant was the proponent of the evidence of a homosexual relationship with the Government’s primary witness.
While the sauce for the goose is sauce for the gander argument is the stock and trade of appellate defense types (I resemble that remark), it was surprising to see CAAF trumpet the same argument. Interestingly, the harmless error analysis is comparably rather bland and until the analysis of the larceny, where Judge Ryan makes the obvious point, as JO'C already commented, that "there is a qualitative difference between the cross-examination permitted by the military judge and the prohibited inquiry into a failed romantic, sexual relationship." A final turn of phrase from Judge Ryan sums up her analysis,
Adding insult to injury, the Government exploited the very evidentiary limitation it requested in closing argument. "Are we supposed to believe that [HM2 C] or somebody else went out and spent $2,700.00 on tools to set this up because she’s mad at somebody? That strains all logic; it’s just not credible."
The dissent takes exception with the level of deference to the military judge's findings and actually takes issue with the qualitative difference suggested by the majority. Judge Baker writes, "It equally 'strains all logic' to suggest that an angry, vengeful lover would go to such extremes, but that an 'angry, vengeful friend' would not." I guess Judge Baker doesn't watch a lot of Jerry Springer.
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8 comments:
I'm hard-pressed to think of a situation where it's not error to prohibit one side from proving that a romantic relationship ended badly as part of its claim that the witness is biased. Could be harmless error sometimes, but common experience tells me that a romantic falling out is qualitatively different from a platonic falling out.
There is another case before CAAF on this same issue.
The case is very familiar in these circles infact discussed several times.
US v Luke is also before CAAF, not withstanding the USACIL debacle. Luke alleges he was precluded from presenting a defense when the judge in the case made the wrong ruling of law when deciding if Luke could present the issue of an abortion the alleged victim underwent in order to conceal her illicit sexual relationship onboard ship and cohabitation in civillian housing.
Luke was contending the allegations against him were pre-emptive and retaliatory for his intention to report some kind illicit relation onboard ship if I remember clearly it been awhile.
according to Luke and I read the amicus brief by Professor Shaun P Martin of university of San Diego law school argued as CAAF outreach 2005 I believe.
CAAF I believe reserved ruling on this issue pending the USACIL expedtion!
This development adds another interesting dynamic to Luke for I believe he is right.
I was a student at the time at UC San Diego Law and was in the audience during oral argument in fact one of my classmates Chris Turtzo presented the oral argument on Luke's behalf.
Matter of fact I beleive I still have a copy of the brief if anyone's interested.
This was a strange credibility contest case if I remember clearly they were other serious issues with the DNA evidence in this case as it was one of the issues argued by Chris at the time. Something to due with government ambush with rebutal DNA evidence and database used if I remember.
If I recall it seemed this Luke dude was given the priviledge of the perp walk for nothing.
Strange case indeed.
This opinion is an important read for young trial counsel and defense counsel; also seems to highlight the tyrannical hypocrisy of MRE 412
This is also an important case for military judges. An accused has the right to present his or her theory of defense. That right usually outweighs a witness' privacy rights. If you are going to shut down the defense theory, you had better do so after an evidentiary hearing and a written opinion containing detailed findings of fact and well-founded conclusions of law.
It may seem at first glance that this is a no-brainer, that a "romantic" relationship gone wrong is a well known motive to fabricate. But, look at Judge Effron's dissent in US V Phillips, 52 MJ 268. He provides an interesting context for the discussion and a rationale for the government's position in this case. I agree with the result here.
BTW, Anon 1400, I am not all all certain how 412 would have much to do with this.
Bridget:
I think Judge Ryan's comment about sauce for the goose is sauce for the gander could be a nod to CJ Effron--totally speculative, but this is a blog. From Philips "it is essential that military judges ensure that evidence of homosexuality not be introduced into a court-martial unless it is clear that the probative value substantially outweighs the danger of unfair prejudice.". While I don't agree with then Judge Effron's seemingly elevated standard for these facts, it was irrelevant to the decision.
Is the defendant's interest really more important? This is an uncommonly stupid case about stolen tools that will now be used as precedent to impeach witnesses as being gay lovers, on the mere assertion of that theory, despite their privacy interests. Resulting testimony could be used in the Salem redux that is known colloquially Don't Ask, Don't Tell.
There are cases where that privacy interest should be overcome, but I am saddened that Baker did not get at least one more vote here.
No Man-I do think that the defense should be able to raise the "romantic relationship". I would want to do that were I defense counsel, because it is a powerful motive to lie. "I'll get even with her" (or him) is not all that uncommon.
In re the following comment on DADT, the defendant did not make the policy. The defendant is fighting criminal charges in which this individual is a prosecution witness.
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