NEWS MEDIA UPDATE · WASHINGTON, D.C. · Secret Courts · March 3, 2006
Assault conviction stands despite secret testimony
March 3, 2006 · An Air Force investigating officer’s order closing an October 2003 pretrial hearing during two victims’ testimony in a rape case was unlawful but did not affect the outcome of the case, a three-judge panel of the U.S. Air Force Court of Criminal Appeals has unanimously ruled.
Defense attorneys failed to prove that closing the courtroom violated Airman First Class Jess M. Davis’ right to a public pretrial investigative hearing or that a military judge’s error in failing to direct a new pretrial hearing harmed Davis’ case, a three-judge appellate panel unanimously ruled in January.
“There is no evidence that the trial defense counsel’s pretrial preparation was impeded because [the victims] did not testify in an open Article 32 hearing,” Judge Col. Craig A. Smith wrote for the court. And “there is no evidence that their testimony would have changed in any material respect had they testified at a second Article 32 hearing, even one open to the public.”
Article 32 hearings are military pretrial proceedings similar to civilian grand jury investigations. An investigating officer, typically a judge advocate, presides over the hearing, decides whether the case should be referred to a general court-martial and recommends punishment. Parties may appeal a general court-martial decision to a military court of criminal appeal.
When three victims, identified in the appellate decision only by their initials — A.C., L.G., and M. — accused Davis of rape and assault, an Article 32 investigating officer concluded that the evidence supported a general court-martial. A.C. and L.G. had testified in a closed session of the hearing. Davis was convicted of three allegations of assault, but acquitted on rape and indecent assault charges. He appealed, seeking to have the charges dismissed and a new investigative hearing.
The appeals court refused to order a new open Article 32 hearing, finding that the errors committed by the investigating officer and military judge were “not a factor in obtaining the appellant’s conviction.”
“At trial, the trial defense counsel conducted very detailed cross-examination of both witnesses,” Smith wrote for the panel. His effective challenge of the witnesses’ perceptions and the details of their allegations led to his client’s acquittal of both alleged rapes and the indecent assault, Smith explained. The assault convictions were obtained because defense counsel did not challenge one of the victim’s underlying assault allegation nor “the general evidence of the appellant’s behavior with and demeanor toward women.”
The appeals court criticized the investigating officer’s decision to close the hearing during A.C. and L.G.’s testimony “due to the sensitive and potentially embarrassing nature of the testimony” without speaking with either witness beforehand.
The right to a public Article 32 hearing may be overcome, the panel explained, only where there is “cause shown that outweighs the value of openness” on a “case-by-case, witness-by-witness, and circumstance-by-circumstance” basis. By not determining whether the witnesses “evinced any embarrassment or timidity regarding the alleged events” or identifying any other facts justifying closure, the investigating officer failed to make that tailored determination.
The appellate panel also ruled that the court-martial judge erred by refusing to order a new pretrial hearing because he believed Davis’s trial wasn’t harmed by the secret testimony.
The appeals panel explained that, if an accused member of the military shows that a substantial pretrial right — such as the right to a public pretrial hearing — was violated, he does not have to show that he suffered any prejudice at trial to be awarded a new pretrial hearing.
“Having established a violation of his substantial pretrial rights, the appellant should have had his right to a public pretrial investigative hearing enforced by the military judge–without a showing of prejudice or articulable harm,” Smith wrote for the court.
Prosecutor Lt. Col. Robert V. Combs and defense counsel Major John N. Page III declined comment.
(United States v. Davis; Defendant’s attorney: Lt. Col. Robert V. Combs, Bolling Air Force Base, Washington, D.C.) — SB