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.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:
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.
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.