United States v. Jasper , 72 M.J. 276 ( 2013 )

UNITED STATES, Appellee
v.
Paul R. JASPER, Sergeant
U.S. Army, Appellant
No. 13-0013/AR
Crim. App. No. 20100112
United States Court of Appeals for the Armed Forces
Argued April 15, 2013
Decided June 4, 2013
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and EFFRON, S.J., joined.
Counsel
For Appellant: Major Jacob D. Bashore (argued); Colonel
Patricia A. Ham and Lieutenant Colonel Jonathan F. Potter (on
brief); Lieutenant Colonel Imogene M. Jamison.
For Appellee: Captain T. Campbell Warner (argued); Lieutenant
Colonel Amber J. Roach and Major Daniel D. Maurer (on brief);
Major Catherine L. Brantley.
Military Judge: James Pohl
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Jasper, 13-0013/AR
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, a panel of officers and enlisted
members sitting as a general court-martial convicted Appellant
of one specification of indecent conduct, in violation of
Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920 (2006), as well as two specifications of committing an
indecent act with a child, and one specification each of
knowingly possessing child pornography, knowingly receiving
child pornography, persuasion and enticement of sexually
explicit conduct for the purpose of producing visual depictions,
and obstruction of justice, all in violation of Article 134,
UCMJ, 10 U.S.C. § 934 (2006). The adjudged sentence provided
for twenty-three years of confinement, a dishonorable discharge,
forfeiture of all pay and allowances, and reduction to grade E-
1. The convening authority approved only so much of the
sentence that provided for eighteen years of confinement, a
dishonorable discharge, forfeiture of all pay and allowances,
and reduction to grade E-1.
The United States Army Court of Criminal Appeals (ACCA)
affirmed the findings and sentence as approved by the convening
authority. United States v. Jasper, No. ARMY 20100112, slip op.
at 6 (A. Ct. Crim. App. July 13, 2012). We granted Appellant’s
petition to review the following issues:
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I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE
ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY
WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER
ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST
APPELLANT.
II. WHETHER THE ARMY COURT ERRED WHEN IT CREATED A
CONSTITUTIONAL “KNOWING” ELEMENT TO MILITARY RULE OF
EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE
INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE
DISCLOSURE TO BE DEEMED VOLUNTARY.
III. WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL
ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE
SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN
MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO
NOTICE.
IV. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL
MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF
POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE
134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER
THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN
AS THE UCMJ DEFINES CHILD.
United States v. Jasper, 72 M.J. 83 (C.A.A.F. 2013) (order
granting review).
We hold that the military judge erred in ruling that the
clergy privilege protecting statements that the putative child
victim made to her pastor under Military Rule of Evidence
(M.R.E.) 503 remained intact when both she and her mother
affirmatively granted that pastor permission to disclose their
communications to trial counsel, and he did disclose them.
Waiver under M.R.E. 510(a) does not require that the privilege
holder have knowledge that the waived statements would otherwise
be privileged, or of how the waived statements will be used.
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This error, which suppressed critical impeachment evidence --
the putative child victim’s statement concerning her sexual
abuse allegations against Appellant that “she had made it all
up . . . to get attention,” -- materially prejudiced Appellant’s
ability to defend himself against each of the specifications of
which he was convicted. See United States v. Collier, 67 M.J.
347, 355-57 (C.A.A.F. 2009); Article 59(a), UCMJ, 10 U.S.C.
§ 859(a) (2006). Consequently, we reverse the ACCA’s decision
and set aside the findings and sentence without reaching the
remaining issues.
I. FACTS
Appellant’s convictions are all related to alleged sexual
conduct between Appellant and his stepdaughter, BK, occurring
between 2006 and 2007, and in 2009. Prior to trial, pursuant to
Rule for Courts-Martial (R.C.M.) 701(a)(6), trial counsel
disclosed to the defense that the Government had learned that,
in 2007, BK had told her pastor that she had made up the earlier
allegations against Appellant to get attention.
Defense counsel moved to compel production of Pastor Ron
Ellyson, who had provided spiritual counseling to BK. At the
motion hearing, defense counsel conceded that the clergy
privilege, M.R.E. 503, applied to BK’s conversations with Pastor
Ellyson, and agreed that the issue was whether BK and her
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mother, AJ, had waived the privilege under M.R.E. 510(a) when
they gave Pastor Ellyson permission to disclose the
communications to trial counsel.
At the motion hearing, Pastor Ellyson testified that trial
counsel had contacted him to discuss obtaining consent from BK
and AJ to disclose the communications he had with BK. After
contacting his attorney, Pastor Ellyson called AJ and asked for
her permission to disclose the communications, but did not
explain that the communications were protected under the clergy
privilege or inform her of the possible ramifications of
disclosure.
AJ gave Pastor Ellyson permission to disclose the
communications he had with BK. Although BK was not present when
AJ spoke with Pastor Ellyson, BK later left Pastor Ellyson a
voice message in which she also gave him permission to disclose
their communications. While Pastor Ellyson testified that he
did not tell AJ who would hear the information, both AJ and BK
testified that they understood that the disclosure was to be
made only to trial counsel.
After receiving permission to disclose the communications
from AJ and BK, Pastor Ellyson spoke with trial counsel and
disclosed that BK had told him that “she had made it all up at
that time to get attention.” Trial counsel subsequently
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provided this favorable information to the defense and visited
both AJ and BK to inform them that BK’s communications were
protected by the clergy privilege and that they could assert the
privilege to prevent disclosure of BK’s communications to Pastor
Ellyson.
At the motion hearing, AJ and BK sought to assert their
privilege to prevent Pastor Ellyson from disclosing the
communications he had already disclosed to trial counsel with
their permission. After hearing AJ and BK’s testimony as to the
circumstances under which they had given Pastor Ellyson
permission to disclose the communications to trial counsel, the
military judge ruled that there had been no waiver and denied
Appellant’s motion to produce Pastor Ellyson because “any
testimony that [he] would have would be inadmissible.”
At trial, the Government principally relied on AJ and BK’s
testimony to prove that Appellant had committed the charged
offenses. See infra Part III.C. Moreover, despite his
knowledge of BK’s exculpatory statement to Pastor Ellyson, trial
counsel argued in closing that BK was credible, stating that
“you can’t make [BK’s testimony] up,” “the kinds of details
[that BK recalled] that if you’re making something up, just
don’t come out,” and “[i]t went down just the way she explained
it.”
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II. ACCA DECISION
As relevant to our decision, Appellant argued before the
ACCA that the military judge erred in ruling that the clergy
privilege protected BK’s statements to Pastor Ellyson from
disclosure because the privilege had been waived when AJ and BK
granted Pastor Ellyson permission to disclose the
communications. In affirming the findings and sentence, the
ACCA held that the military judge did not abuse his discretion
in ruling that neither BK nor AJ had waived the privilege under
M.R.E. 510(a). Jasper, No. ARMY 20100112, slip op. at 4, 6.
The ACCA relied on the fact that “no one informed AJ nor BK that
they had a right to maintain the confidentiality of BK’s
communications with Pastor Ellyson in the court-martial
process,” and that “AJ and BK both believed that the disclosure
was limited to the trial counsel.” Id. at 4. In light of these
facts, the ACCA held that the circumstances “[did] not
demonstrate a knowing intent to make the information public,”
and “[n]either AJ nor BK voluntarily consented ‘to disclosure of
any significant part of the matter or communication under such
circumstances that it would be inappropriate to allow the claim
of privilege.’” Id. (quoting M.R.E. 510(a)).
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III. DISCUSSION
A military judge’s decision to admit or exclude evidence is
reviewed for an abuse of discretion. United States v.
McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000). “To find an abuse
of discretion requires more than a mere difference of opinion --
the challenged ruling must be arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” Id. (internal quotation
marks and citation omitted).
The parties agree that, as an initial matter, the clergy
privilege, M.R.E. 503, applied to BK’s communications with
Pastor Ellyson. The sole question before us, then, is whether
the privilege was waived under M.R.E. 510(a). If the privilege
was waived, the military judge abused his discretion in denying
Appellant’s motion to produce Pastor Ellyson and excluding BK’s
statements to him. See United States v. McCollum, 58 M.J. 323,
327 (C.A.A.F. 2003).
Contrary to the ACCA’s holding, where, as here, the
privilege holder, in the absence of factors like coercion or
trickery, affirmatively consents to the disclosure of the
privileged communication to a third party, the privilege is
waived, regardless of whether the privilege holder was aware
that: (1) the communication was privileged, or (2) consenting
to the disclosure of the communication waived the privilege.
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Here, the military judge erred in denying Appellant’s motion to
produce Pastor Ellyson and excluding BK’s statements to him as
privileged, and that error was not harmless beyond a reasonable
doubt.
A.
M.R.E. 503(a) provides that:
A person has a privilege to refuse to disclose and to
prevent another from disclosing a confidential
communication by the person to a clergyman . . . if
such communication is made either as a formal act of
religion or as a matter of conscience.
The clergy privilege may be claimed by the person, the
person’s guardian, or the clergyman on behalf of the person.
M.R.E. 503(c). Under M.R.E. 510(a), a privilege is waived “if
the person . . . voluntarily discloses or consents to disclosure
of any significant part of the matter or communication under
such circumstances that it would be inappropriate to allow the
claim of privilege.” Here, there is no question that both BK
and her guardian, AJ, affirmatively consented to Pastor
Ellyson’s disclosure of the statements to trial counsel. Under
such circumstances, and for the reasons below, we think that “it
would be inappropriate to allow the claim of privilege” to
prevent defense counsel from using BK’s statements at trial.
Id.
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“Testimonial exclusionary rules and privileges contravene
the fundamental principle that the public . . . has a right to
every man’s evidence.” Trammel v. United States, 445 U.S. 40,
50 (1980) (internal quotation marks and citation omitted).
Because privileges “run contrary to a court’s truth-seeking
function,” they are narrowly construed. United States v.
Custis, 65 M.J. 366, 369 (C.A.A.F. 2007). While “determining
waiver of a privilege is an ‘evaluation [that] demands a
fastidious sifting of the facts and a careful weighing of the
circumstances,’” id. at 371 n.9 (quoting In re Keeper of the
Records (XYZ Corp.), 348 F.3d 16, 23 (1st Cir. 2003)), waiver
has never turned on anything more than the requirement set forth
in M.R.E. 510(a) that the privilege holder “voluntarily
discloses or consents to disclosure of any significant part of
the matter or communication.” See M.R.E. 510(a).
This Court has not previously considered waiver under
M.R.E. 510(a) in the clergy privilege context. However, in the
marital privilege context, we have never conditioned waiver on
the privilege holder’s awareness of the privilege. See
McElhaney, 54 M.J. at 132 (holding that elliptical references to
the content of a marital communication voluntarily made to a
third party was sufficient to waive privilege); McCollum, 58
M.J. at 339 (“[V]oluntary consent to disclose is given where one
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spouse either expressly or implicitly authorizes the other to
share information with a third party.”).
Moreover, courts have found waiver on nothing more than the
privilege holder’s failure to take adequate precautions to
maintain confidentiality, see United States v. Hamilton, 701
F.3d 404 (4th Cir. 2012) (finding waiver where the defendant put
confidential communications in work e-mail), and have expressly
disavowed the notion that, for a waiver to be valid, the
privilege holder must intend to waive the privilege -- instead,
whether a waiver is valid turns on whether the disclosure was
voluntary. See Champion Int’l. Corp. v. Int’l. Paper Co., 486
F. Supp. 1328, 1332 (N.D. Ga. 1980) (“‘[V]oluntary disclosure,
regardless of knowledge of the existence of the privilege,
deprives a subsequent claim of privilege based on
confidentiality of any significance.’” (citation omitted));
State v. Patterson, 294 P.3d 662, 667 (Utah Ct. App. 2013)
(stating that “it is not necessary . . . to show that a
[privilege holder] intended to waive the privilege but only that
she intended to make the disclosure” (quotation marks and
citation omitted)); State v. Gray, 891 So. 2d 1260 (La. 2005)
(affirming trial court’s ruling that clergy privilege was
waived); see also 1 Charles T. McCormick, McCormick on Evidence
§ 93 (7th ed. 2013) (“Finding waiver in situations in which
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forfeiture of the privilege was not subjectively intended by the
holder is consistent with the view, expressed by some cases and
authorities, that the essential function of the privilege is to
protect a confidence that, once revealed by any means, leaves
the privilege with no legitimate function to perform.”).
Finally, unlike the “high standards of proof for the waiver
of constitutional rights,” Miranda v. Arizona, 384 U.S. 436, 475
(1966), M.R.E. 510(a) does not require that a waiver of
privilege be made “knowingly” or “intelligently,” see M.R.E.
510(a). Cf. M.R.E. 305(g) (waiver of right to counsel “must be
made freely, knowingly, and intelligently”); Schneckloth v.
Bustamonte, 412 U.S. 218, 234, 237 (1973) (holding that
“knowledge of a right to refuse [consent] is not a prerequisite
of a voluntary consent” and noting that “[a]lmost without
exception, the requirement of a knowing and intelligent waiver
has been applied only to those rights which the Constitution
guarantees to a criminal defendant in order to preserve a fair
trial”).
The Government nonetheless insists that the present
circumstance is not one where it would be “inappropriate to
allow the claim of privilege” under M.R.E. 510(a) because AJ and
BK were unaware of the privilege when they granted Pastor
Ellyson permission to disclose BK’s statements. The effect of
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this argument, however, is to require a “knowing” and
“intelligent” waiver where no such language appears in M.R.E.
510(a). And where, as here, a privilege holder voluntarily
consents to the disclosure of privileged statements to trial
counsel without express limitation, we think it would be
inappropriate to allow a claim of privilege to prevent Appellant
from using those statements at trial. Cf. R.C.M. 701(a)(6);
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process”).
B.
Given that the military judge’s ruling was an abuse of
discretion, the question remains whether the error implicated
Appellant’s constitutional rights. See Collier, 67 M.J. at 352.
While “trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits
on . . . cross-examination,” Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986), an accused’s Confrontation Clause rights are
violated when “‘[a] reasonable jury might have received a
significantly different impression of [the witness’s]
credibility had [defense counsel] been permitted to pursue his
proposed line of cross-examination,’” Collier, 67 M.J. at 352
(quoting Van Arsdall, 475 U.S. at 680). “Whether sufficient
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cross-examination has been permitted depends on whether the
witness’s motivation for testifying has already been exposed and
‘further inquiry . . . would [be] marginally relevant at best
and potentially misleading.’” Id. (quoting United States v.
Carruthers, 64 M.J. 340, 344 (C.A.A.F. 2007)).
There is little question that in cases such as these, the
credibility of the putative victim is of paramount importance,
and that a statement by that person that she had made up some or
all of the allegations to get attention might cause members to
have a significantly different view of her credibility.
Here, the military judge’s ruling prevented Appellant from
using BK’s statements to impeach her credibility through cross-
examination or otherwise. U.S. Const. amend. VI (right “to be
confronted with the witnesses against him”). In addition, the
military judge’s error prevented Appellant from presenting BK’s
statements to the panel through Pastor Ellyson’s direct
testimony, “depriv[ing] [him] of ‘relevant and material,
and . . . vital’ testimony and evidence,” United States v.
McAllister, 64 M.J. 248, 252 (C.A.A.F. 2007) (quoting Washington
v. Texas, 388 U.S. 14, 16 (1967)), and limiting his ability to
prove his theory of the case. U.S. Const. amend. V (right to
“due process of law”); U.S. Const. amend. VI (right “to have
compulsory process for obtaining witnesses in his favor”); see
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Washington, 388 U.S. at 16-19; McAllister, 64 M.J. at 252.
Given that: (1) BK’s testimony was critical to the
Government’s case; (2) the erroneous exclusion of BK’s
exculpatory statements prevented Appellant from “expos[ing] the
alleged nefarious motivation behind [her] allegations and
testimony,” see Collier, 67 M.J. at 352; and (3) Appellant’s
theory of the case was that both his wife, AJ, and his
stepdaughter, BK, were lying, the military judge’s erroneous
ruling violated Appellant’s rights to confrontation and due
process. See Van Arsdall, 475 U.S. at 680; Washington, 388 U.S.
at 19.
C.
“Having found constitutional error, the question remains
whether that error was harmless beyond a reasonable doubt.”
Collier, 67 M.J. at 355 (citing Chapman v. California, 386 U.S.
18, 24 (1967)). “Whether a constitutional error was harmless
beyond a reasonable doubt is a question of law reviewed de
novo.” United States v. Tearman, 72 M.J. 54, 62 (C.A.A.F.
2013). Where the error improperly limits an accused’s
opportunity to present exculpatory evidence through direct
testimony and cross-examination, “[t]he burden is on the
Government to show that there is no reasonable possibility that
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the error contributed to the contested findings of guilty.”
Collier, 67 M.J. at 355 (quotation marks and citation omitted).
“To find that the error here warrants relief, we need not
conclude that Appellant’s defense would have succeeded. Instead
the inquiry should focus on whether the military judge’s ruling
‘essentially deprived Appellant of [her] best defense’ that ‘may
have tipped the credibility balance in Appellant’s favor.’” Id.
at 356 (quoting United States v. Moss, 63 M.J. 233, 239
(C.A.A.F. 2006)). Where the error violates the accused’s right
“to be confronted with the witnesses against him,” U.S. Const.
amend. VI, we apply the balancing test articulated by the
Supreme Court in Van Arsdall, and weigh:
the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the
witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.
475 U.S. at 684.
The Government’s case and Appellant’s defense strategy
hinged on BK’s credibility. BK’s testimony and, as a corollary,
her credibility were critical to the Government’s case with
regard to the indecent conduct specification and the indecent
acts specifications as there was no other witness that testified
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to seeing the conduct, and no physical evidence supporting her
testimony.
Moreover, the Government principally relied on both AJ and
BK’s testimony to prove the remaining specifications. BK
testified that, on Wednesday, August 19, 2009, Appellant texted
her sixty-two times, and asked her to send him nude pictures of
herself. Using the mirror in her bedroom and her cell phone, BK
testified that she took the pictures and sent them to Appellant.
BK next testified that, two days later, Appellant signed
her out of school at 1:00 p.m., brought her home, and began to
engage in sexual activity with her. BK recalled the details of
the sexual activity -- what was done and said -- and stated that
it had lasted for about twenty minutes. After the sexual
activity ended, BK testified that Appellant photographed her
nude body in a variety of poses.
While BK did not testify directly that Appellant deleted
the photos from his phone, BK’s testimony that Appellant had
taken nude photos of her on his cell phone and AJ’s testimony
that she had seen the photos were offered to prove the necessary
factual condition precedent for convicting Appellant of
destroying incriminating evidence by deleting the purported
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photos from his cell phone.1 Given that Appellant’s defense was
that both BK and AJ were lying, and given that no one other than
AJ testified to seeing the photos that BK said were taken, and
AJ claimed were deleted, we cannot say that BK’s testimony was
not important to the Government’s proof of the obstruction of
justice specification.
Appellant was otherwise permitted to cross-examine BK and
other Government witnesses to expose inconsistencies in their
testimony and in the Government’s case, and did so.
Nevertheless, we find dispositive the fact that, aside from the
circumstantial evidence that it presented, the Government’s case
rested on both AJ and BK’s testimony. See United States v.
Savala, 70 M.J. 70, 78 (C.A.A.F. 2011) (finding that “[t]he
strength of the Government’s circumstantial case . . . d[id] not
overcome” the consideration that “credibility was a critical
issue in the case”); Collier, 67 M.J. at 356 (“Because [the
witness] was one of only two witnesses on the influencing
testimony charge, any additional damage to [her] credibility
could have been very significant to the outcome of the case.”).
While the Government introduced some evidence corroborating some
1
The obstruction of justice specification alleges that Appellant
“wrongfully endeavor[ed] to impede an investigation . . . by
deleting indecent digital photographic images of his
stepdaughter . . . from his cellular telephone.”
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details of AJ and BK’s testimony,2 BK was a critical witness to
each charged offense.
In turn, Appellant’s defense was that BK and AJ were lying.
In support of his theory, Appellant called an employee of a
tattoo shop who testified that he did not see “anything out of
the ordinary” when BK and Appellant visited the shop only hours
after the alleged sexual activity and nude photographing had
occurred. Appellant also highlighted the important evidence
missing from the Government’s case, including (1) the SIM card
from BK’s cell phone, which had been ruined after being
accidentally dropped in the toilet before Criminal Investigation
Division (CID) collected the phone approximately one month after
the alleged incident had been reported; and (2) any forensic
evidence that could have been found either on BK’s clothing or
the pillows that BK had laid on with Appellant during the sexual
2
AJ testified that, on August 22, 2009, she discovered multiple
nude pictures of BK in Appellant’s cell phone. She described
the different poses in which BK had been photographed and
recounted that Appellant had chased her outside the house,
grabbed the cell phone, and locked himself in a bedroom while he
deleted the photographs. This testimony was partly corroborated
by: (1) the transcript of AJ’s 911 call, which she made
immediately after finding the photographs; (2) the testimony of
TJ -- AJ and Appellant’s daughter, and BK’s half-sister -- who
witnessed the altercation, but did not see the photographs in
Appellant’s cell phone or Appellant deleting them; and (3) a
text message that Appellant sent to AJ the day after the alleged
altercation, which stated: “I no [sic], but when this mess is
over it will all be different, is it fair 2 pay the rest of my
life cuz [sic] I made a mistake, I’m only human.”
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assault that had allegedly occurred prior to Appellant’s alleged
nude photographing of BK.
The military judge’s erroneous ruling prevented defense
counsel from introducing evidence that BK had stated in 2007
that she had made up those earlier allegations, which directly
supported Appellant’s theory of the case. While the
Government’s case was not weak, it hinged on BK’s credibility.
The military judge’s ruling prevented Appellant from using a
critical piece of exculpatory evidence to impeach BK’s
testimony, which, in turn, could have necessarily impeached AJ’s
testimony and affected the panel’s findings as to each of the
remaining specifications. This possibility compels the
conclusion that defense counsel’s use of BK’s exculpatory
statement “‘may have tipped the credibility balance in
Appellant’s favor,’” Collier, 67 M.J. at 357 (quoting Moss, 63
M.J. at 239), and its erroneous prohibition was not “unimportant
in relation to everything else the jury considered,” Id.
(citation omitted). See Savala, 70 M.J. at 78 (finding
prejudice where “the ruling by the military judge enabled the
prosecution to enhance the credibility of its version while
handcuffing the defense”).
Furthermore, despite knowing of BK’s statement that she had
made the allegations up, “[a]dding insult to injury, the
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Government exploited [the military judge’s erroneous]
evidentiary limitation . . . in closing argument,” Collier, 67
M.J. at 357, arguing that “you can’t make [BK’s testimony] up,”
“the kinds of details [that BK recalled] that if you’re making
something up, just don’t come out,” and “[i]t went down just the
way she explained it.” These comments compounded the harm that
the military judge’s error created.
On these facts, the Government has not carried its burden
to show that the deprivation of key evidence directly related to
the credibility and motivation of its primary witness was
harmless beyond a reasonable doubt.
IV. DECISION
The decision of the United States Army Court of Criminal
Appeals is reversed, and the findings and sentence are set
aside. The record is returned to the Judge Advocate General of
the Army. A rehearing is authorized.
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