Sir,
Here are my notes from CDR Rugh's ruling during the 39a for LCpl Perry:
Findings of Fact:
RCM 601(d)(1) reads "if the convening authority FINDS..."
RCM 406 details how the SJA provides his advice.
I find that the President's guidance in the RCMs directly controverts the plain reading of Article 34, UCMJ.
The CA retains final referral power, but he can exercise that power ONLY after the required determinations made by the SJA. The SJA must find that the specifications are warranted by the evidence.
In this case, the SJA stated that the specifications were warranted "except in para 5" below wherein he detailed which specifications were not warranted. This is a clear conclusion by the SJA.
Regarding the issue of the word "force" used by the SJA, the question is whether that language is a conclusion or if it is ambiguous. Throughout the Art 34 letter, the SJA mixes terminology, colluding the meaning of 'force', 'duress', etc. But, the SJA's testimony was that the word 'force' was used in layman's terms for his own audience - the GCMCA.
Additionally, consent is an element of wrongful sexual contact (spec 4) and, because of the double burden shift with the defense of consent, it is an element of Specs 1 & 2, as well.
Conclusion:
SJA's findings were clear that in Specs 1, 2, & 4, the evidence was insufficient as to the issue of consent to warrant forwarding to a general court-martial. Without a finding of sufficient evidence to warrant the specifications, the relevant specs may not be referred.
Remedy:
The Judge used Harrison for determination of the appropriate remedy. He ruled that dismissal was appropriate with the next question being whether it should be with or without prejudice.
The dismissal was with prejudice for the following reasons:
All specifications arise out of a single incident with one alleged victim and 3 co-conspirators and one bystander witness. There is little chance that a NEW Art 32 investigation would raise new evidence to warrant the charges. Therefore, the charges are dismissed WITH prejudice.
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I will also update Sharepoint to wrap-up that discussion topic and post the motion itself.
Very respectfully,
Bret A. White
Captain, U.S. Marine Corps
Defense Counsel
Defense Services Organization, Eastern Region
Marine Corps Base, Quantico
3250 Catlin Avenue
Quantico, VA 22134
Front Desk: 703.784.4615
Direct: 703.784.0405
Fax: 703.784.0259
-----Original Message-----
From: Baker Col John
Sent: Monday, November 21, 2011 13:55
To: White Capt Bret A; Mcconnell Major Matthew N; Thompson Capt Carol A
Subject: Art 34 Ruling
Team Q,
I'm helping Col Sullivan put together an info paper on the Art 34 litigation for the Air Force DCs that we'll also use for the DSO. Do any of you have the MJ's ruling? When's the third motion being litigated in front of Judge Hale?
S/F,
Col Baker
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