News and Insights

This opinion reflects the personal views of the author and should not be attributed to any agency or office.

There has been a lot of media attention recently on rape victims and the prevalence of rape in the military.  As some of the individuals retell their stories, it is clear to see that they suffered from a traumatic experience.  However, being in the military myself, and a former military prosecutor no less, I do not share the opinion that there is an "epidemic" in our ranks.  Does sexual assault occur in the military?  Absolutely.  But does it occur at a rate any higher than what you might find on an average college campus or in the public writ large?  No.  And when sexual assault allegations arise, are commanders sweeping them under the proverbial rug?  Certainly not!

One of the major differences in the military justice system versus the state criminal justice system, is that the District Attorneys in the states can evaluate the allegations, and if they decide that the case lacks prosecutorial merit, they can refuse to present the case to a grand jury for an indictment.  Another major difference is if the grand jury says there isn't enough evidence, the District Attorney can't go forward.  Neither of these checks and balances are found in the military justice system.

Instead, unit commanders (called Convening Authorities - usually Colonels and higher) decide whether a case should proceed to trial.  For felony-level cases like sexual assault, they must first receive a recommendation from a neutral investigator, but the ultimate decision on whether to go forward with a case rests with the commander.

The neutral investigator (called an Article 32 Investigating Officer) hears the evidence that the government has against the defendant and makes a recommendation to the commander.  This sounds fair so far, but when the investigator recommends NOT going forward on a sexual assault case because of deficiencies in the evidence, all too often the commander is faced with a dilemma: dismiss the charges as recommended or forward the charges to a General Court-Martial.  The easiest decision is to send it forward.

But can you blame them?  What are the commanders supposed to do when the deafening chorus of politicians and news anchors are calling for more accountability for "rapists" in the military?  Does anyone really expect a commander (typically a rising star in the military) to risk their professional future by refusing to send a rape allegation to trial and face being labeled by the media as "hiding rapists" or being "soft on sexual assault?" No way!  They are going to take the easy way out.  The politically palatable way out.  They are going to kick the can down the road to the prosecutor and let him take the case to trial, warts and all, under the guise of letting "the military justice system runs its course."

Please do not read this to say that I think all sexual assault allegations in the military have no prosecutorial merit.  Many do.  But can we ever expect the commander to make the hard call to dismiss a case when it lacks merit?  Not any more.  And then when the prosecutors do their very best with a case that would have never gone to trial in a state system, we ask: Why can't you get the conviction?  The prosecutors may possess the trial skills of Perry Mason or Clarence Darrow, but they can't change the facts of the case, the rules of evidence, or the burden of proof.  These cases are seldom black and white.  And in a Constitutional system that requires proof beyond a reasonable doubt, convictions are (and should be) hard to come by.

With all of this going on (our focus on the victims), what is baffling to me, is that we are forgetting about the accused.  What happened to "innocent until proven guilty?" Congress is asking for more convictions; going so far to change the military sexual assault laws in a shameless effort to secure more convictions, while, the accused is labeled a rapist before even having his day in court.  This is terrible and antithetical to our criminal justice system.  We can't simply jettison the Constitution when it is politically appealing.

Many the media outlets that have focused on this issue, they are the only one, in my opinion, that has its priorities straight.  Sometimes justice means that a person is convicted of sexual assault.  Sometimes it doesn't.  But this prejudgment of military defendants (or any defendants) has to stop.  By law, an accused is innocent until a verdict of guilty is returned and no sooner.

Somehow I let this case slip down in my pile of blogworthy CCA cases.  It was released in November 2011. Sorry ‘bout that.

Goad v. State (Tex. Crim. App. 2011) presents some interesting facts.  Facts that almost sound like they are out of a law school hypothetical.  Here is the skinny version:

Goad and a friend knock on a neighbor’s door and ask if she has seen his dog.  They also ask if they can come into the house and look for the dog.  The State thinks that they were “casing” the house at this point.  After Goad leaves, the neighbor pulls her car around back so that Goad will think she is not home, hoping that he will not come back to bother her anymore.  Fifteen minutes later, the neighbor notices the curtains in her front room moving and then she sees Goad and his friend stick their heads through the window.  The neighbor screamed and then Goad and his friend retreated.  The neighbor called the police and Goad was later apprehended.

The State charged Goad with Burglary of a Habitation, on the theory that Goad entered his neighbor’s house with the intent to commit theft.  At trial, Goad requested an instruction on the lesser-included offense (LIO) of Criminal Trespass, arguing that he did not intend to steal anything, but only to look for his lost dog.  The trial court refused to give the LIO instruction and Goad was convicted of Burglary of a Habitation.

The 11th District Court of Appeals (Eastland) held that the trial judge erred in refusing to give the LIO instruction:

[T]he jury rationally could have found Goad guilty only of criminal trespass because the jury could have believed that Goad was looking only for his dog.

On State’s petition for discretionary review, the Texas Court of Criminal Appeals explained that for Criminal Trespass to be an LIO of Burglary...

[t]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. …Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.

The State’s basic argument against the LIO instruction was that there was no “affirmative evidence” to negate the defendant’s intent to commit theft.  However, Judge Keasler wrote, “[w]e must consider all of the evidence admitted at trial, not just the direct evidence of a defendant’s intent.” The fact that the defendant had knocked on the door looking for his dog 15 minutes earlier, and the fact that he did not carry any traditional burglary tools, while not direct evidence of his lack of intent, were enough for the CCA to hold that an LIO instruction should have been given.  The CCA affirmed the Court of Appeals.

Presiding Judge Keller concurred, noting that “juries are entitled to choose among multiple reasonable inferences, as long as each inference is supported by the evidence presented at trial.”

Judge Alcala concurred, but wrote separately in an effort to point out that, in her opinion, the majority failed to specify the standard of appellate review under which the case was being considered.  This issue was apparently very important to Judge Alcala, because her concurring opinion is 16 pages in length (longer than the majority opinion and Presiding Judge Keller’s opinion combined).

What does it mean to use a "Fraudulent Prescription Form" in Texas?

The State of Texas charged and convicted Billie Jean Avery of attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented at trial, however, revealed that the defendant actually used a legitimate prescription form, but that she forged some data on her prescription information in an attempt to obtain stronger pain pills.

In her appeal to the 13th District Court of Appeals (Corpus Christie), Appellant argued that she could not be convicted of using a “fraudulent prescription form” when the prescription form she used was legitimate.  The Court of Appeals agreed and acquitted her of the offense.

On discretionary review, the Texas Court of Criminal Appeals affirmed Court of Appeals’ affirmed judgment of acquittal. In a unanimous opinion, the CCA explained:

Just as tax information should be recorded on a tax form to create a competed tax return, so too prescription information should be recorded on a prescription form to create a completed prescription.  The information that is written on the form is not the form itself…[W]e hold that “prescription form” refers to a pre-printed form designed to have prescription information written on it.

This was a case of a simple charging error by the District Attorney's office, but it goes to show that attention to detail can win the day.

Fort Worth Drug Crimes Attorneys | Keller Southlake Drug Possession Defense Attorneys

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this "opinion is troubling," as Sarah puts it.  I agree.