Corporal RosarioMartinez was charged with sexual assault of another Marine after the two were drinking at a bar. During voir dire, the military judge asked the members if they had been instructed on the definition of consent through Marine Corps training. They all said that they had and the military judge stopped for a brief recess. After the recess, the military judge read the legal definition of consent and asked if the members could follow this definition and disregard Marine Corps training and policy. In individual voir dire of Capt Jordan, he stated that during the recess before the legal definition of consent was given, that he had spoken with the members about the Marine Corps policy and that he believed it to be that an individual cannot consent to sexual activity after consuming any alcohol. Eventually, Capt Jordan was excused from the panel and some of the other potential members were questioned about the conversation as well. All members who heard the case assured the military judge that they could disregard Marine Corps policy and apply the legal definition of consent.
After Corporal RosarioMartinez was found guilty of sexual assault, the defense counsel met with another member, Capt Sierra, to get feedback on their trial techniques. Capt Sierra told them that the members had voted several times, with the first several votes resulting in more than three votes for not guilty, before they voted to convict. Under the UCMJ, members vote once and if three-quarters of the members do not vote to convict, the accused is acquitted. In order to vote again, the members must announce their intention to do so to the judge and parties in open court. The voting procedure Capt Sierra described did not follow these rules and was entirely improper. The defense asked Capt Sierra to sign an affidavit detailing the repeated votes and then filed a post-trial motion to correct the findings worksheet.
Ordinarily, all member deliberations are privileged and cannot be disclosed pursuant to Military Rule of Evidence (MRE) 509. The exceptions to that rule are found in MRE 606. Member testimony about the deliberation process is only allowed concerning: 1) whether extraneous prejudicial information was improperly brought to the members’ attention; 2) whether unlawful command influence or any outside influence was improperly brought to bear on any member; or 3) whether a mistake was made in entering the findings or sentence. The defense’s motion claimed that Capt Sierra’s affidavit fell under the third exception and should be considered in their motion to set aside the verdict. The military judge disagreed, finding that the affidavit did not address any of the MRE 606 exceptions, and refusing to consider its contents.
On appeal, the defense provided not only Capt Sierra’s affidavit, but two more from other members. These members not only discussed the multiple votes, but also said that the members discussed the Marine Corps policy that victims are to be believed and that individuals cannot consent to sexual activity after consuming alcohol. The defense sought to attach these affidavits to the appellate record, arguing that they were evidence of unlawful command influence improperly brought to bear on the members. The Navy-Marine Corps Court of Criminal Appeals considered the question and denied the defense motion to attach the affidavits. It found the discussion of the voting procedure to be entirely prohibited by MRE 509. It further found that the statements concerning discussion of Marine Corps policy were not sufficient to raise the issue of unlawful command influence as they contained no evidence that “someone attempted to use policy considerations to influence the deliberations of the members.” There was no evidence that any member said that the panel had to follow Marine Corps policy or even to consider it. The affidavits merely said that the policies were discussed. Courts have found that members frequently discuss “irrelevant matters during deliberation.”
Without these affidavits, the Court determined that the record contained no evidence of unlawful command influence and affirmed the conviction. If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.