Air Force Court Reverses Military Judge’s Dismissal of Sexual Assault Charge

In January 2016, Senior Airman Harrington was at a party with several individuals. SSgt FC, LB, and TSgt KW were at the party as well. The group played several drinking games, including an “adult” version of Jenga. The game required individuals to perform tasks, such as removing articles of clothing or taking “body shots” from another person’s body. During this game, SSgt FC removed her pants and SrA Harrington took body shots from several parts of her body. SSgt FC became intoxicated and was put to bed in an upstairs bedroom. She awoke at some point to find SrA Harrington in the bed, engaging in sexual intercourse with her. He stopped when she moved and she left the bed when he appeared to be asleep.

In November 2016, SrA Harrington was tried for sexual assault by bodily harm and convicted. During his trial, his attorneys had tried to introduce evidence from TSgt KW and LB about SSgt FC and SrA Harrington’s actions during the Jenga game. The Military Judge denied the motion and that evidence was not introduced at trial.

In September 2018, the Air Force Court of Criminal Appeals overturned SrA Harrington’s conviction. The Court found that the Military Judge erred in excluding the Jenga game evidence.

The record of trial was returned to the command’s legal office on 4 February 2019 for a rehearing. The prosecutors brought SrA Harrington back onto active duty. The charge was referred to the rehearing on 13 May 2019 and SrA Harrington was arraigned on 7 June 2019. Trial was scheduled for October 2019, but in late-September the Government could not locate LB and said they would be unable to produce him for trial. The Defense asked for a continuance so that he could be found. The trial date was moved to March 2020.

In October 2019, the defense moved to dismiss the charge against SrA Harrington for a violation of his Sixth Amendment right to a speedy trial. The Military Judge found the delays in referring the charge for the rehearing and to produce LB were the Government’s fault. He denied the motion to dismiss because he did not find any prejudice to SrA Harrington from the delay.

When the trial began in March 2020, both LB and TSgt KW testified at a hearing. Neither individual could remember much of the conduct surrounding the Jenga game due to either the passage of time or medical impairment. The Military Judge determined that the loss of these two witnesses was the prejudice that came from the Government-caused delays. He dismissed the charge.

The Government appealed this dismissal to the Air Force Court of Criminal Appeals. The appellate court reversed the Military Judge’s decision. The Court agreed that there were delays caused by the Government. However, it found that the prejudice to SrA Harrington did not come from those delays. The Court believed that LB and TSgt KW’s loss of memory did not come from the months that this case was delayed but from the passage of time from the actual events in 2016. The Court also noted that the defense would be able to use the recorded testimony of these individuals from the first trial in place of live testimony. Therefore, SrA Harrington was not prevented from presenting the evidence at his rehearing and was not prejudiced. The record was returned to the military judge to continue with the trial.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.

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