Thursday, May 19, 2011

CAAF Reverses Rape Conviction

Earlier this week, CAAF decided an (ostensibly, check out the CAAFlog comments) MRE 412 case, US v. Savala. This case involves a familiar military rape allegation (with additional, related charges) in which the complainant is drunk and doesn’t remember significant portions of the alleged incident.

At the court-martial, the defense counsel (NIMJ’s own Phil Cave) made motions to admit evidence of a prior (allegedly false) sexual assault allegation the complainant had made. The military judge, wanting to avoid a mini-trial on the validity of the previous allegation, denied the pretrial motion to introduce the evidence. Upon the trial counsel eliciting testimony from the complainant that she had delayed reporting the incident at issue in Savala’s case because she’d been the victim of a previous sexual assault that hadn’t resulted in any type of prosecution, the defense made a motion requesting permission to cross-examine the complainant about the previous incident because the trial counsel had “opened the door.” The military judge denied the motion, finding the evidence irrelevant, not covered by MRE 412’s provisions, and not constitutionally required.

On appeal, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that the military judge should have allowed the defense counsel to cross-examine the complainant about the earlier rape allegation because the trial counsel had opened the door to the testimony. However, the NMCCA affirmed the conviction, finding the error harmless beyond a reasonable doubt due to the “overwhelming evidence” of Savala’s guilt. That evidence included the discrepancies between Savala’s testimony and that of a fellow seaman (Townsel), DNA evidence, and the fact that Savala had never met the complainant before the sexual encounter. The service court found Townsel credible, despite the fact that Townsel had initially lied to investigators and was under suspicion himself for sexually assaulting the complainant. The Court also reasoned that the defense counsel was able to adequately impeach the complainant’s credibility without using the previous sexual assault allegation information.

At CAAF, the majority (CJ Effron writing) presumed error in the military judge’s denial of the second defense motion at trial, based on “the law-of-the-case” doctrine, because the appellate government office didn’t challenge the service court’s holding regarding the Confrontation Clause error. So, CAAF looked to the prejudice question, relying on the Toohey balancing test that weighs (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the excluded evidence; and (4) the quality of the evidence in question. Van Arsdall also requires consideration of whether, “assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”

Deeming witness credibility an essential issue in this case, the majority found “the ruling by the military judge enabled the prosecution to enhance the credibility of its version while handcuffing the defense.” Holding that the court members could have decided the complainant had made a previous false rape accusation that would have significantly damaged her credibility regarding the rape claim at issue in the court-martial, the Court reversed the findings.

Judges Stucky and Baker dissented, rejecting the majority’s “law-of-the-case” analysis and finding no prejudice from the military judge’s erroneous evidentiary ruling. On the “law-of-the-case” doctrine, the dissenters pointed out the seemingly illogical nature of requiring the government to appeal a lower court’s ruling in which the government prevailed. Agreeing that the military judge erred in finding that the trial counsel hadn’t opened the door to the potential falsity of the previous rape claim, the dissenters nonetheless highlighted the “strong circumstantial case” the trial counsel built against Savala. For the dissenters, Townsel’s credibility was key, and his initial, false statements regarding the night assisted his friend Savala. The complainant’s previous rape allegation’s aftermath also didn’t lead to the necessary conclusion that the complainant had made up the previous claim, according to Judge Stucky.

A rehearing on the findings is authorized.

It may be my imagination—we’ll see what the end-of-term statistics are--but it seems to me that CAAF has handed down quite a few 3-2 opinions this term.  Here's NIMJ Director Phil Cave's post on the current breakdown of this term's CAAF opinions.