                                    IN THE CASE OF



                            UNITED STATES, Appellee

                                            v.

                  Christopher B. WASHINGTON, Airman Basic
                         U.S. Air Force, Appellant

                                     No. 01-0658

                             Crim. App. No. S29797

             United States Court of Appeals for the Armed Forces

                                Argued March 19, 2002

                             Decided September 30, 2002



     EFFRON, J., delivered the opinion of the Court, in which
GIERKE and BAKER, JJ., joined. BAKER, J., filed a concurring
opinion. CRAWFORD, C.J., and SULLIVAN, S.J., each filed an
opinion concurring in part and dissenting in part.


                                        Counsel

For Appellant: Major Maria A. Fried (argued); Lieutenant Colonel Beverly B.
Knott, Lieutenant Colonel Timothy W. Murphy (on brief); and Major Jeffrey A.
Vires.

For Appellee: Captain Christa S. Cothrel (argued); Colonel Anthony P.
Dattilo, and Lieutenant Colonel Lance B. Sigmon (on brief); Major Jennifer R.
Rider.


Military Judge:    Roger A. Drew, Jr.



         THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Washington, No. 01-0658/AF



   Judge EFFRON delivered the opinion of the Court.

   A special court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of willfully

disobeying a lawful order given by a superior commissioned

officer, in violation of Article 90, Uniform Code of Military

Justice (UCMJ), 10 USC § 890.   He was sentenced to a bad-conduct

discharge and confinement for two months.   The convening

authority approved these results, and the Court of Criminal

Appeals affirmed.   54 MJ 936 (2001).

     On appellant’s petition, we granted review the following

issues:


          I. WHETHER THE MILITARY JUDGE ABUSED HIS
          DISCRETION WHEN HE EXCLUDED RELEVANT
          EVIDENCE REGARDING THE SAFETY AND EFFICACY
          OF THE ANTHRAX VACCINE WHICH WAS NECESSARY
          TO APPELLANT'S AFFIRMATIVE DEFENSE UNDER
          R.C.M. 916(h).

          II. WHETHER THE AIR FORCE COURT OF CRIMINAL
          APPEALS ERRED IN ITS APPLICATION OF ARTICLE
          66(c) WHEN IT CONCLUDED THAT APPELLANT WAS
          NOT ENTITLED TO A PRESUMTION OF INNOCENCE.

          III. WHETHER THE AIR FORCE COURT OF
          CRIMINAL APPEALS ABUSED ITS DISCRETION WHEN
          IT AFFIRMED APPELLANT'S SENTENCE DESPITE THE
          AIR FORCE'S DE FACTO POLICY THAT ANTHRAX
          REFUSAL CASES WILL BE DISPOSED OF BY
          NONJUDICIAL PUNISHMENT AND ADMINISTRATIVE
          DISCHARGE.

For the reasons set forth below, we remand to the Air Force

Court of Criminal Appeals for further consideration of Issue II.

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United States v. Washington, No. 01-0658/AF


           I. LITIGATION AT TRIAL CONCERNING THE ORDER
                TO RECEIVE THE ANTHRAX VACCINATION

                             A. BACKGROUND

     Anthrax is an infectious animal disease that can be

employed as a deadly biological weapon.      Over the last decade,

the Department of Defense (DoD) has focused attention on the

possibility that such weapons might be used against deployed

U.S. forces.   As a countermeasure, DoD, for a period of time,

implemented a program involving widespread vaccination of U.S.

military personnel.   The program subjected numerous members of

the armed forces to a series of six vaccinations designed to

counter the effects of any exposure to anthrax.

      Appellant, who was stationed in the United States,

received five of the six vaccinations without objection.      In

1999, he was deployed to Saudi Arabia, where he declined to

receive the sixth vaccination.    On December 21, his squadron

commander ordered him to receive the required vaccination.

Appellant refused to obey the order, and he received nonjudicial

punishment under Article 15, UCMJ, 10 USC § 815, for

disobedience of the order.    The nonjudicial punishment consisted

of reduction from pay grade E-4 to E-1 and a suspended

forfeiture of $483.00 per month for two months.

     Appellant’s commander issued appellant a new order on

January 7, 2000, directing that he receive the anthrax



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United States v. Washington, No. 01-0658/AF


vaccination within 24 hours.   On January 8, appellant informed

his commander that he would not obey the order.    Appellant’s

refusal occurred after he had considered articles in the media

and testimony in congressional proceedings raising questions

about the safety and effectiveness of the anthrax vaccine.

     Appellant was charged with a violation of Article 90, UCMJ,

which prohibits willful disobedience of a lawful order from a

superior commissioned officer.   The charge was referred to a

special court-martial.   During pretrial proceedings, the

prosecution asked the military judge to rule that the order was

lawful.   The defense expressly stated that it would not contest

the lawfulness of the order.   The military judge ruled that the

order was lawful, and he advised the parties that he would so

instruct the members of the court-martial.

     The prosecution then moved to preclude the defense from

introducing evidence challenging the safety and effectiveness of

the vaccination program.   The defense objected, contending that

such evidence was central to the defense case, which would be

based upon the defenses of duress and necessity.    The military

judge granted the prosecution’s motion.   The military judge

indicated that the defense of duress was unavailable because it

requires an unlawful threat from a human being, and that the

defense of necessity was unavailable because it requires a

threat from a natural physical force -- neither of which was


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United States v. Washington, No. 01-0658/AF


present in this case.   The military judge reasoned, in effect,

that any threat to appellant’s health came from human

implementation of a lawful policy decision, not from an unlawful

threat or a natural physical force.   On appeal, appellant

contends that the military judge committed prejudicial error by

not permitting him to present pertinent evidence regarding the

defenses of duress and necessity.



                           B. DISCUSSION

     In United States v. Rockwood, 52 MJ 98 (1999), we

considered the nature of the duress defense in the military

justice system, as well as the question of whether the defense

of necessity is available in courts-martial.   With respect to

duress, we observed: (1) “[c]lassically, duress was seen as a

defense to crime if the defendant was compelled or coerced to

commit the crime by some human agency, under a threat of serious

imminent harm to the defendant or others”; (2) “[f]or the

defense of duress to apply, the crime committed must have been

of lesser magnitude than the harm threatened”; (3) “the duress

must [have] consist[ed] of threatening conduct which produced in

the defendant . . . a reasonable fear of . . . immediate (or

imminent) . . . death or serious bodily harm”; and (4) “[a]n

obviously safe avenue of escape before committing the prohibited

act nullifies the defense.”   Id. at 112 (citing 1 Wayne R.


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United States v. Washington, No. 01-0658/AF


LaFave & Austin W. Scott, Jr., Substantive Criminal Law 614-27

(1986); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1959-

65 (3d ed. 1982); United States v. Vasquez, 48 MJ 426, 429-30

(1998)(internal quotations and emphasis omitted)).

      With respect to the defense of necessity, we noted: (1)

necessity “was traditionally seen as a choice of evils defense”

in which “the pressure of circumstances was not brought by human

agency, but by the situation itself”; and (2) “[t]he defendant’s

belief that his actions were necessary must have been

reasonable, and there must have been no alternative that would

have caused lesser harm.”       Id. at 112 (citing 1 LaFave & Scott,

supra, at 627-31, 635, 638; Perkins & Boyce, supra, at 1069;

United States v. Bailey, 444 U.S. 394, 410 (1980)(footnote and

internal quotations omitted)).

      In our discussion of applicable military law, we took note

of R.C.M. 916(h), Manual for Courts-Martial, United States (2000

ed.)∗ which provides for the defense of duress.           We also observed

that the defense of necessity was not specifically provided for

in the Manual for Courts-Martial, and that under the

circumstances of the case it was unnecessary to decide whether,

as a matter of law, it should be available in the military

justice system.     Id. at 113-14.


∗
  All Manual provisions cited are identical to those in effect at the time of
appellant's court-martial.


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United States v. Washington, No. 01-0658/AF


     Appellant places primary reliance on R.C.M. 916(h), which

states:

          It is a defense to any offense except
          killing an innocent person that the
          accused’s participation in the offense was
          caused by a reasonable apprehension that the
          accused or another innocent person would be
          immediately killed or would immediately
          suffer serious bodily injury if the accused
          did not commit the act. The apprehension
          must reasonably continue throughout the
          commission of the act. If the accused has
          any reasonable opportunity to avoid
          committing the act without subjecting the
          accused or another innocent person to the
          harm threatened, this defense shall not
          apply.


Appellant contends that a plain reading of the text provides a

defense to a charge of disobeying a lawful order if the accused

had a reasonable belief that compliance with the order would

result in death or serious bodily injury to the accused or

another person.   According to appellant, the military judge

erred in two respects: first, by grafting onto the rule a

requirement that the duress result from the unlawful threat of a

human being; and second, by declining to consider the necessity

defense in the absence of a threat imposed by a natural physical

force.

     Appellant’s narrow reading of R.C.M. 916(h) would permit a

member of the armed forces to disobey a lawful order if the

servicemember had a reasonable apprehension that he or she, or



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United States v. Washington, No. 01-0658/AF


another innocent person, would immediately be killed or suffer

serious bodily injury if he or she complied with the order.

Such an interpretation suggests that the President designed the

rule to alter one of the core values of military service -- the

willingness of the individual to sacrifice his or her life or

well-being for the sake of the nation.    As the Supreme Court has

emphasized, “[t]he essence of military service ‘is the

subordination of the desires and interests of the individual to

the needs of the service.’”    Goldman v. Weinberger, 475 U.S.

503, 507 (1986)(quoting Orloff v. Willoughby, 345 U.S. 83, 92

(1953)).

     The requirement to place the needs of the nation above a

servicemember’s personal welfare applies in peacetime as well as

in war.    “[I]t is the primary business of armies and navies to

fight or be ready to fight should the occasion arise.”    United

States v. ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).

Every day, members of the armed forces engage in operational

missions or training activities in which there is a risk of

death or serious bodily injury to themselves or others.

Although the armed forces rely on unit cohesion and leadership

to foster a willingness to undertake such risks, legal sanctions

are available to promote obedience should positive measures

prove insufficient.    Congress has expressly provided criminal

sanctions in Article 90, UCMJ, as well as Articles 91 and 92,


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United States v. Washington, No. 01-0658/AF


UCMJ, 10 USC §§ 891 and 892, for failure to obey a lawful order,

including authority in Article 90(2) for capital punishment in

time of war for disobedience of the lawful order of a superior

commissioned officer.

     The President’s guidance with respect to the disobedience

offenses embodies longstanding military law.   “An order

requiring the performance of a military duty or act may be

inferred to be lawful and it is disobeyed at the peril of the

subordinate.”   Paragraph 14c(2)(a)(1), Part IV, Manual, supra.

“The order must relate to military duty, which includes all

activities reasonably necessary to accomplish a military

mission, or safeguard or promote the morale, discipline, and

usefulness of members of a command and directly connected with

the maintenance of good order in the service.”   Id. at para.

14c(2)(a)(iii).   When a commander gives an order that is

reasonably necessary to accomplish the mission -- including an

order involving protective measures, such as defensive

positioning, wearing protective armor, or taking a vaccine to

counter a biological weapon -- the servicemember is obligated to

obey or face punishment under Articles 90, 91, or 92, UCMJ.     If

servicemembers could disobey lawful orders to participate in

military training or operations out of a reasonable apprehension

that they or others might suffer death or serious bodily injury,




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United States v. Washington, No. 01-0658/AF


the President’s guidance in paragraph 14c(2)(a) Part IV, Manual,

supra, would be rendered meaningless.

     In light of the foregoing, it would be inappropriate to

read the President’s guidance on the duress defense in R.C.M.

916(h) Manual, supra, in isolation.   Instead, it must be read in

conjunction with the guidance on disobedience of lawful orders

and the essential purposes of military law.   In that context,

the military judge correctly ruled that the duress defense in

R.C.M. 916(h) should be viewed in a manner consistent with the

requirement in prevailing civilian law that the threat emanate

from the unlawful act of another person.   Likewise, if the

defense of necessity applies in the military justice system -- a

question which we need not resolve at this time -- similar

considerations would call for an application of the prevailing

civilian doctrine regarding the requirement for the necessity to

arise from a natural force, as opposed to a human action.

     As we noted in Rockwood, supra, “[t]here may indeed be

unusual situations in which an assigned military duty is so

mundane, and the threat of death or grievous bodily harm . . .

is so clearly defined and immediate, that consideration might be

given to a duress or necessity defense.”   52 MJ at 114.   This is

not such a case.   The evidence offered at trial demonstrated

that the vaccination program was designed and implemented as a

defensive measure in the face of a significant military threat.


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United States v. Washington, No. 01-0658/AF


Assuming the validity of the data provided by appellant

concerning the risk of adverse effects from the vaccination,

such information does not demonstrate that the purpose of the

vaccination program was “mundane” or that such risks were so

immediate and widespread as to undermine its purpose.

     The foregoing discussion is based on the premise -- not

challenged by appellant in this case -- that the order was

lawful.    A servicemember charged with a disobedience offense may

challenge the lawfulness of the order on a variety of grounds,

e.g., that the order directed the commission of a crime; that

the issuing officer lacked authority; that the order did not

relate to a military duty; that it interfered with private

rights or personal affairs without a valid military purpose;

that it was solely designed to achieve a private purpose; that

it conflicted with a person’s statutory or constitutional

rights.    See para. 14c(2)(a)(i)-(iv), Part IV, Manual, supra;

United States v. New, 55 MJ 95 (2001).    In the present case,

however, appellant chose not to challenge the lawfulness of the

order he received to participate in the anthrax vaccination

program.    Accordingly, we have no occasion in this case to

determine whether the program is based upon lawful authority or

whether there are other legal grounds for questioning the

program.    Based on the foregoing, we resolve this issue against

appellant.


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United States v. Washington, No. 01-0658/AF



       II. APPLICABILITY OF THE PRESUMPTION OF INNOCENCE
    DURING INTERMEDIATE APPELLATE REVIEW UNDER ARTICLE 66(c)

                             A. BACKGROUND

        Article 66(c), UCMJ, 10 USC § 866(c) provides:

             In each case referred to it, the Court of
             Criminal Appeals may act only with respect
             to the findings and sentence as approved by
             the convening authority. It may affirm only
             such findings of guilty and the sentence or
             such part or amount of the sentence, as it
             finds correct in law and fact and
             determines, on the basis of the entire
             record, should be approved. In considering
             the record, it may weigh the evidence, judge
             the credibility of witnesses, and determine
             controverted questions of fact, recognizing
             that the trial court saw and heard the
             witnesses.


        Article 66(c) requires the Courts of Criminal Appeals to

conduct a de novo review of legal and factual sufficiency of the

case.     See United States v. Cole, 31 MJ 270, 272 (CMA 1990).

The court may affirm a conviction only if it concludes, as a

matter of factual sufficiency, that the evidence proves

appellant’s guilt beyond a reasonable doubt.     United States v.

Sills, 56 MJ 239, 240-41 (2002); United States v. Turner, 25 MJ

324, 324-25 (CMA 1987).     Although the court in the present case

discussed the theoretical basis for a lesser standard of proof,

it ultimately concluded that the evidence was sufficient to

demonstrate appellant’s guilt beyond a reasonable doubt, thereby




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United States v. Washington, No. 01-0658/AF


mooting any impact from its discussion of the lesser standard.

See 54 MJ at 941.

     In the course of its discussion of factual sufficiency, the

court also rejected appellant’s suggestion that appellate review

for factual sufficiency under Article 66(c), UCMJ, required the

court to apply the “presumption of innocence.”   Id. at 940.   The

“presumption of innocence” is a longstanding feature of both

military and civilian law and is set forth in the statutory

requirement that, prior to findings, the members of a court-

martial must be instructed “that the accused must be presumed to

be innocent until his guilt is established by legal and

competent evidence beyond a reasonable doubt.”   See Art.

51(c)(1), UCMJ, 10 USC § 851(c)(1).   The instruction, which does

not literally employ a presumption, reminds the members of a

critical fact -- that the accused, as a matter of law, is

innocent unless the members are satisfied the prosecution has

proved each required element of the offense beyond a reasonable

doubt.   See 1 Barbara E. Bergman & Nancy Hollander, Wharton’s

Criminal Evidence, §§ 2:2, 3:10, at 23, 169-70 (15th ed. 1997).

As a practical matter, the presumption of innocence serves to

underscore the instruction that the members may not presume that

the defendant is guilty simply because charges have been

referred to trial.   See Military Judges’ Benchbook, Dept. of the

Army Phamphlet 27-9 (Sept. 30, 1996) at 2-5.


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United States v. Washington, No. 01-0658/AF


     At the appellate level, different considerations apply.

The Court of Criminal Appeals is required to conduct a de novo

review of the entire record of a trial, which includes the

evidence presented by the parties and the findings of guilt.

Such a review involves a fresh, impartial look at the evidence,

giving no deference to the decision of the trial court on

factual sufficiency beyond the admonition in Article 66(c),

UCMJ, to take into account the fact that the trial court saw and

heard the witnesses.

     In the performance of its Article 66(c), UCMJ, functions,

the Court of Criminal Appeals applies neither a presumption of

innocence nor a presumption of guilt.   The court must assess the

evidence in the entire record without regard to the findings

reached by the trial court, and it must make its own independent

determination as to whether the evidence constitutes proof of

each required element beyond a reasonable doubt.   In contrast to

the lay members who serve on courts-martial, the mature and

experienced judges who serve on the Courts of Criminal Appeals

are presumed to know and apply the law correctly without the

necessity of a rhetorical reminder of the “presumption of

innocence.”

     In addition to reminding the fact-finder to not employ a

presumption of guilt, the presumption of innocence also reflects

allocation of the burden of proof.   See Bell v. Wolfish, 441


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United States v. Washington, No. 01-0658/AF


U.S. 520, 533 (1979)(citing Taylor v. Kentucky, 436 U.S. 478,

485 (1978)).   During review under Article 66(c), UCMJ, an

appellant does not bear the burden of raising doubts about the

trial-level finding of guilty.   If the decision of the Court of

Criminal Appeals raises substantial questions as to whether

there has been an appropriate allocation of the burden, our

Court cannot rely on the presumption that the court below

applied the law correctly, and a remand is required to ensure

that the court below applies a level playing field.    See United

States v. Troutt, 8 USCMA 436, 439, 24 CMR 246, 249 (1957).     The

opinion of the court below in the present case raises such

questions.   Instead of describing the approach that it would

apply in lieu of the presumption of innocence, the court below

cited Herrera v. Collins, 506 U.S. 390 (1993).    54 MJ at 941.

Herrera, however, involved the appellate issue of whether

federal habeas corpus relief is appropriate in light of newly

discovered evidence – an issue under which the convicted person

faces a very heavy burden in terms of raising doubts about his

guilt.   Herrera, 506 U.S. at 417.    The lower court’s reliance on

Herrera raises the question of whether the court erroneously

placed the burden on appellant to raise doubts about his guilt.

Although the lower court does not need the reminder of a

presumption of innocence in order to perform its Article 66(c),

UCMJ, review, we must be assured on appeal that the court did


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United States v. Washington, No. 01-0658/AF


not improperly shift the burden to appellant to raise doubts

about his guilt, which would indicate “application of an

erroneous principle of law.”    Troutt, 8 USCMA at 439, 24 CMR at

249.    A limited remand is appropriate in the present case to

ensure that the court below has applied the correct principles

of law.    See United States v. Hutchison, 57 MJ 231 (2002).



                 III. REVIEW OF APPELLANT’S SENTENCE
                   BY THE COURT OF CRIMINAL APPEALS

       Before the Court of Criminal Appeals, appellant introduced

information concerning the disposition of other anthrax-related

cases in the Air Force.    The information indicated that

disciplinary action had been taken in “just over 150 Air Force

cases” involving refusal to take the anthrax vaccine.     Some of

the cases involved repeat offenders.    Of the six individuals

whose cases were referred to summary courts-martial, all

eventually were given an administrative discharge.     One of the

six cases was referred to a special court-martial after the

accused objected to a summary court-martial under Article 20,

UCMJ, 10 USC § 820, and he subsequently requested and was

granted an administrative discharge in lieu of court-martial.

One officer, who was offered nonjudicial punishment under

Article 15, UCMJ, requested trial by court-martial, and his case




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United States v. Washington, No. 01-0658/AF


was pending at the time appellant’s case was under review at the

Court of Criminal Appeals.     See 54 MJ at 942-43.

     The Court of Criminal Appeals identified specific aspects

of appellant’s case which it viewed as significant on the issue

of sentence appropriateness, including a letter of counseling

for reporting late for duty, a letter of reprimand for similar

misconduct on a different date and for insubordinate conduct

towards a noncommissioned officer, and negative comments in the

performance report he received prior to deployment.    Id. at 943.

The court also took note of “substantial evidence that . . .

appellant was motivated to refuse the inoculation, not because

of his concern for the effects of the vaccine upon his body, but

because he wanted to return to Barksdale Air Force Base to

operate a trucking business he had been running during his off-

duty hours before he deployed.”    Id.   The court, noting that it

had considered “all the facts and circumstances surrounding the

commission of the offense, as well as the character of . . .

appellant and the matters in the record of trial,” concluded

that the sentence was appropriate.     Id.

     In the present appeal, appellant contends that the lower

court abused its discretion by not granting relief on the basis

of sentence appropriateness.    Appellant does not contend in this

appeal that he is the subject of discriminatory or selective




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United States v. Washington, No. 01-0658/AF


prosecution.    Compare United States v. Garwood, 20 MJ 148, 154

(CMA 1985).

     The information submitted by appellant to the Court of

Criminal Appeals reflects a variety of discretionary

dispositions by Air Force commanders over both a relatively

brief period of time and a small number of cases.   In reviewing

a case for sentence appropriateness, the Courts of Criminal

Appeals are not required to compare appellant’s case to other

specific cases unless the appellant demonstrates that his or her

case is closely related to the case or cases offered for

comparison.    The mere similarity of offenses is not sufficient.

See United States v. Wacha, 55 MJ 266, 267-68 (2001).

     In our review of sentence appropriateness decisions by the

Courts of Criminal Appeals, we determine whether the lower court

“abused its discretion or caused a miscarriage of justice” in

exercising its highly discretionary sentence review function.

Id. at 268 (citing United States v. Fee, 50 MJ 290, 291 (1999)).

In the present case, the court below considered both the data

provided by appellant and the specific circumstances of

appellant’s case.   The court’s delineation of the factors

pertinent to its exercise of this highly discretionary function

did not constitute either an abuse of discretion or a

miscarriage of justice.




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United States v. Washington, No. 01-0658/AF


                         IV. CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is set aside.   The record of trial is returned

to the Judge Advocate General of the Air Force for remand to the

Court of Criminal Appeals for further consideration of Issue II

in accordance with this opinion.      Thereafter, the record of

trial shall be returned directly to this Court.




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United States v. Washington, No. 01-0658/AF


     BAKER, Judge (concurring):

     I agree with the majority on Issue I that appellant

did not reasonably raise a defense of duress or necessity,

but I feel it is unnecessary to redefine those defenses, or

establish their factual predicates, in the context of this

case.   On Issue II, I agree with the limited remand, but

write separately to communicate my views regarding one of

the principle foundations of criminal law.    Finally, I

agree with the majority on Issue III.

                              I.

     A military judge is required to instruct members on

the defense of duress when the defense is reasonably raised

by some evidence.   United States v. Williams, 21 MJ 360,

362 (CMA 1986); United States v. Rankins, 34 MJ 326, 328

(CMA 1992).   The same is true of the necessity defense, to

the extent such a defense exists in military law.    Rankins,

34 MJ at 328.   The Supreme Court summarized the rationale

behind this two-part test in United States v. Bailey,

     precisely because a defendant is entitled to have the
     credibility of his testimony, or that of witnesses
     called on his behalf, judged by the jury, it is
     essential that the testimony given or proffered meet a
     minimum standard as to each element of the defense so
     that, if the jury finds it to be true, it would
     support an affirmative defense -– here that of duress
     or necessity.

444 U.S. 394, 415 (1980).
United States v. Washington, 01-0658/AF


     In criminal law systems where members and juries

adjudicate facts, there are good reasons why “[r]uling on a

defense as a matter of law and preventing the jury from

considering it should be a rare occurrence in criminal

cases.”   Id. at 435 (Blackmun, J., dissenting).         The same

reasoning applies to a trial before a judge alone.           If some

evidence reasonably raises a duress or necessity defense,

then an accused should have the opportunity to put on a

full defense and have the judge or members assess the

defense as the trier of fact.          With such a standard, in

theory, it should be a rare event when such a defense is

not presented to the trier of fact.          This is such a case.

     Appellant conceded that the order to undergo anthrax

inoculation was lawful.      He took five of six anthrax shots

without adverse reaction.      The materials from the Internet,

on which appellant based his defense, were not relevant to

appellant’s situation; they were not connected to his

health or to his profile.1       As a result, whether cast as a

duress or necessity defense, neither defense was reasonably

1
 The circumstances might have been different had appellant concretely
demonstrated his presence in a defined class of risk: a soldier
deathly allergic to penicillin ordered to take penicillin or a soldier
allergic to eggs ordered to take an egg-based vaccine. The majority
opinion seems to suggest that neither a duress nor a necessity defense
would be available in such cases because the predicate for the defense
would not arise from a human action or a natural force. The majority
opinion also suggests that a defense would only be available if taking
such a vaccine were considered “mundane.” These are issues we need not




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United States v. Washington, 01-0658/AF


raised by appellant; therefore, we need not decide whether

appellant was making a duress or necessity argument, or

ultimately, whether the necessity defense is available in

the military system of justice.         In the absence of a

definitive textual argument, I am inclined to think that

the necessity defense is available for the reasons stated

by Judge Wiss in Rankins.       Rankins, 34 MJ at 336-40 (Wiss,

J., dissenting).     But surely, as well, for the reasons

stated in United States v. Rockwood, 52 MJ 98, 107-12

(1999), in a military context, the defense is far more

likely to arise in law school hypotheticals, than in the

reality of military service, and then only where the

flouting of military authority is not involved.           It is for

these reasons, perhaps, that this court has circled around

the necessity defense, not sure whether to pull the defense

fully on board, but not willing to cast it fully adrift,

lest its presence is required on deck in unforeseeable

circumstances.

                                       II.

      The presumption of innocence is a critical part of our

tradition of justice.      It is deeply imbedded in our culture

as well as in our systems of justice.         It is a virtue of



consider or decide in this context where, in any event, the defenses
were not reasonably raised.


                                   3
United States v. Washington, 01-0658/AF


democratic society and can be an expression of American

optimism.    It finds its way into the vernacular of everyday

relationships, between parent and child, teacher and

student, as well as in our legal relationships.     In the

courtroom, the presumption of innocence means not only that

the Government bears the burden of proving every element of

crime beyond a reasonable doubt, but that the trier of fact

-- panel, jury, or judge -- approaches the case without

negative predisposition drawn from the accused’s presence

in the courtroom.   Indeed, to guard against such

disposition, juries are instructed to adopt an affirmative

assumption of innocence.

     Not surprisingly, the reasonable doubt standard and

the presumption of innocence are tightly intertwined, but

not inextricably so.   The Supreme Court has described the

“presumption of innocence” as a “shorthand description of

the right of the accused to ‘remain inactive and secure,

until the prosecution has taken up its burden and produced

evidence and effected persuasion. . . .’”    Taylor v.

Kentucky, 436 U.S. 478, 485 n.12 (1978).    Beyond a

reasonable doubt is the measure of the prosecution’s

burden.   But the presumption of innocence is a trial level

construct.   As a matter of law and logic, it does not

migrate from the courtroom to military appellate chambers.


                               4
United States v. Washington, 01-0658/AF


     The Air Force Court of Criminal Appeals relies on

Herrera v. Collins, 506 U.S. 390 (1993), to make its case;

however, Herrera is not controlling precedent in a military

justice system where Courts of Criminal Appeals exercise

unique de novo powers of factual review.    See Article

66(c), Uniform Code of Military Justice (UCMJ), 10 USC §

866(c); United States v. Crider, 22 USCMA 108, 110-11, 46

CMR 108, 110-11 (1973).   However, Supreme Court precedent

involving civilian proceedings is informative in tracing

the derivation of the “presumption of innocence” as a trial

mechanism.   In Taylor, the Court observed that the

“admonition derives from a perceived salutary effect upon

lay jurors.”   Taylor, 436 U.S. at 484.   In Bell v. Wolfish,

441 U.S. 520 (1979), the Court noted that the “presumption

of innocence is a doctrine that allocates the burden of

proof in criminal trials; it also may serve as an

admonishment to the jury to judge an accused's guilt or

innocence solely on the evidence adduced at trial and not

on the basis of suspicions that may arise from the fact of

his arrest, indictment, or custody, or from other matters

not introduced as proof at trial.”   Bell, 441 U.S. at 533.

This same precedent demonstrates that the presumption of

innocence is tied to principles of due process, but is not

derived from an independent constitutional requirement.


                              5
United States v. Washington, 01-0658/AF


Thus, in Taylor, the Court held that “on the facts of this

case the trial court’s refusal to give petitioner’s

requested instruction on the presumption of innocence

resulted in a violation of his right to a fair trial as

guaranteed by the Due Process clause of the Fourteenth

Amendment.”   Taylor, 436 U.S. at 490 (emphasis added).   As

a result, the presumption cannot be said to flow from a

principle of law that would override the language of

Article 66(c), UCMJ, or this Court’s long-standing

interpretation of that responsibility that has neither

acknowledged nor rejected an appellate presumption of

innocence, but that has required Courts of Criminal Appeals

to independently review courts-martial records free from

factual assumptions or presumptions.

     Article 66(c), UCMJ, does not textually incorporate a

presumption of innocence:    “In considering the record, [the

Court of Criminal Appeals] may weigh the evidence, judge

the credibility of witnesses, and determine controverted

questions of fact, recognizing that the trial court saw and

heard the witnesses.”    “Weigh the evidence” comes without

textual presumption.    In contrast, deference for the trial

court having seen and heard the witnesses arguably

incorporates a presumption in the direction of the trial

outcome appealed.


                               6
United States v. Washington, 01-0658/AF


      Nor is an appellate presumption of innocence found in

military case law.      The test for factual sufficiency is

“whether, after weighing the evidence in the record of

trial and making allowances for not having personally

observed the witnesses, the members of the Court of

[Criminal Appeals] are themselves convinced of the

accused’s guilt beyond a reasonable doubt.”           United States

v. Turner, 25 MJ 324, 325 (1987).          The Courts of Criminal

Appeals have been referred to as a "thirteenth juror."

United States v. Schlegel, 7 MJ 773, 775 (ACMR

1979)(Mitchell, S.J., concurring in part and dissenting in

part).    See also Tibbs v. Florida, 457 U.S. 31, 42 (1982).

But that is a confusing analogy in this context.            For the

Courts of Criminal Appeal do not in fact sit as a juror or

military judge, observing the witnesses, and with a

predisposition of innocence.2          When questions of law are

concerned, for example, Courts of Criminal Appeal consider

the evidence “in the light most favorable to the

prosecution.”     Jackson v. Virginia, 443 U.S. 307, 319

(1979).


2
 A Court of Criminal Appeals’ “fact-finding powers in determining the
degree of guilt to be found on the record [may be] more apposite to the
action of a trial court than to an appellate body,” but that does not
mean the presumption of innocence applies anymore than it means the
rules regarding speedy trial apply to de novo appellate review. United
States v. Crider, 22 USCMA 108, 111, 46 CMR 108, 111 (1973).



                                   7
United States v. Washington, 01-0658/AF


     Further, as a matter of logic, a panel or military

judge has already adjudicated the case.       There is a finding

of guilt.   The law necessarily incorporates presumptive

constructs.   Judges are presumed to know the law, until

demonstrated otherwise.   United States v. Prevatte, 40 MJ

396, 398 (CMA 1994).   Juries are presumed to follow

instructions, until demonstrated otherwise.       United States

v. Holt, 33 MJ 400, 408 (CMA 1991).       But the law does not

expect the Courts of Criminal Appeals to disregard the

trial, which is, after all, what they are asked to review

under the Turner and Jackson standards.       This is an

artificial construct too far.       Nor do appellate judges,

constrained by Turner and Jackson, require admonishment to

preserve the Government’s burden of proof.       What the law

requires, as Crider demonstrates, is a de novo review of

the facts free from a presumption of guilt and subject to a

burden of proof beyond a reasonable doubt.       Crider, 22

USCMA at 111, 46 CMR at 111.




                                8
United States v. Washington, No. 01-0658/AF


     CRAWFORD, Chief Judge (concurring in part and dissenting in

part):

     I agree with the majority as to Issues I and III, and its

rationale as to Issue II, but part company as to a remand.    The

judges on the Court of Criminal Appeals (CCA) cited dicta in

Herrera v. Collins, 506 U.S. 390, 399 (1993), as follows:    “Once a

defendant has been afforded a fair trial and convicted of the

offense for which he was charged, the presumption of innocence

disappears....”   This correct statement of the law, even though in

a habeas corpus case, does not rebut the presumption that the

judges below knew and applied the law correctly in this case.

See, e.g., United States v. Prevatte, 40 MJ 396, 398 (CMA 1994);

United States v. Montgomery, 20 USCMA 35, 39, 42 CMR 227, 231

(1970).

     The presumption of innocence is not strictly speaking, a

presumption in the sense of an inference deduced from a given

premise, “but an assumption of innocence since the prosecution

has the burden of persuasion with regard to the defendant’s

guilt.”   See Harold A. Ashford & D. Michael Risinger,

Presumptions, Assumptions and Due Process in Criminal Cases, A

Theoretical Overview, 79 Yale L.J. 165, 173 (1969).   See also 9

John H. Wigmore, Evidence in Trials at Common Law § 2511 at 530

(Chadbourn rev. 1981).   Professor J. Thayer recognized that the

presumption “is not evidence -- not even an inference drawn from
United States v. Washington, No. 01-0658/AF


a fact and evidence -- but instead is a way of describing the

prosecution’s duty” to prove the guilt of the defendant at

trial.     Taylor v. Kentucky, 436 U.S. 478, 483 n.12 (1978).

        “In contrast to the lay members who serve on courts-

martial, the mature, experienced judges who serve” on the CCAs

are well-suited to perform their statutorily mandated Article

66(c)1 review without employing a rhetorical “presumption of

innocence” reminder.        ___ MJ (14-15).      The beyond a reasonable

doubt standard assures that the burden does not shift to an

appellant, thereby creating a level playing field without

further reminder of the burdens of proof and burdens of

persuasion to these able judges.            Surely we do not require

appellate judges to list mechanically in every case the items

they did not consider, e.g., arrest, investigation pursuant to

Article 32,2 when applying the factual sufficiency test.

Presumptions of guilt or innocence are inconsistent with the

requirement of both United States v. Turner, 25 MJ 324 (CMA

1987), and Jackson v. Virginia, 443 U.S. 307 (1979), that the

Government prove the case beyond a reasonable doubt, and have no

place in appellate practice.          Accordingly, the court’s rejection

of appellant’s request to apply a “presumption of innocence” did




1
    Uniform Code of Military Justice (UCMJ), 10 USC § 866(c).
2
    UCMJ, 10 USC § 832.


                                        2
United States v. Washington, No. 01-0658/AF


not constitute error or create an ambiguity requiring re-

examination.

     As the majority correctly notes, the CCA applies neither a

presumption of innocence nor a presumption of guilt.    The dicta

from Herrera cited by the CCA correctly reflect the long-

standing view that the presumption of innocence is a trial-level

device and a means of allocating the burdens of proof.    That is,

that the Government has the burden of producing evidence of

guilt and must persuade the fact finder beyond a reasonable

doubt.    However, the presumption of innocence disappears

following a conviction at trial, without regard to whether that

conviction is attacked via a direct appeal or a habeas corpus

petition.    In Herrera, the Supreme Court held that there was no

violation of due process by the state’s reliance on a time limit

to refuse to consider newly discovered evidence, even though

such evidence would establish “actual innocence” of the offense

for which the defendant had been sentenced to death.    506 U.S.

at 404.    The dicta cited by the CCA from Herrera is consistent

with the basic historical fact that the “assumption of

innocence” only applies at the trial level.    Further, the dicta

cited by the CCA correctly reflect the burdens and the

presumptions at the trial level and what happens on appeal,

whether a direct appeal or a habeas corpus petition.




                                  3
United States v. Washington, No. 01-0658/AF


     Other than noting that Herrera involved a federal habeas

corpus issue, the majority offers no explanation as to how the

lower court’s citation to dicta in Herrera raise the question of

burden shifting to appellant.   While the majority cites lack of

clarity by the lower court, it certainly can be criticized for

its own lack of clarity in ordering a remand.    The cite to dicta

in Herrera neither undermines the fact that the court correctly

applied the Turner and Jackson standard, nor blunts the fact

that the CCA found the Government had proven its case beyond a

reasonable doubt.   A remand will do little more than clarify

what review the court performed under Turner and Jackson.    The

fact that the “presumption of innocence disappears” when there

is a habeas corpus petition does not weaken, and is indeed

consistent with, the proposition that there is no presumption of

innocence after a conviction at the trial level.   Thus, the CCA

correctly applied Turner and Jackson to both its factual and

legal sufficiency reviews.   See 54 MJ at 941.




                                 4
United States v. Washington, No. 01-0658/AF


    SULLIVAN, Senior Judge (concurring in part and dissenting in
part):



   I do not write on a clean slate concerning the first granted

issue.    See United States v. Rockwood, 52 MJ 98, 114 (1999);

United States v. Olinger, 50 MJ 365, 367 (1999)(Sullivan, J.,

concurring in the result); United States v. Rankins, 34 MJ 326,

331 (CMA 1992)(Sullivan, J., dissenting).   However, in this case,

appellant conceded that the order to take the anthrax shot was

lawful.   In addition, it was uncontroverted that he had

previously taken five of six required anthrax shots without

serious incident.   Under these circumstances, the judge’s

decision to deny admission of evidence of possible effects of an

anthrax shot in general, if error, was clearly harmless beyond a

reasonable doubt.   See United States v. Garcia, 44 MJ 27, 31-32

(1996)(exclusion of defense evidence which did not have value in

particular case was harmless error).



    The second issue granted review is more difficult.     It asks:

           WHETHER THE AIR FORCE COURT OF CRIMINAL
           APPEALS ERRED IN ITS APPLICATION OF
           ARTICLE 66(c) WHEN IT CONCLUDED THAT
           APPELLANT WAS NOT ENTITLED TO A
           PRESUMPTION OF INNOCENCE


In my view, the Court of Criminal Appeals clearly erred.     United

States v. Troutt 8 USCMA 436, 439, 24 CMR 246, 249 (1957), See

also United States v. Sills, 56 MJ 239, 240-41 (2002)(holding



                                  1
United States v. Washington, No. 01-0658/AF

that the Air Force Court of Criminal Appeals erred in not

applying a beyond a reasonable doubt standard when exercising its

factual sufficiency power under Article 66(c), Uniform Code of

Military Justice (UCMJ), 10 USC § 866(c).   Nevertheless, I

further conclude that this error did not prejudice appellant.

See Article 59(a), UCMJ, 10 USC § 859(a).



    Article 66(c) UCMJ states:

          In a case referred to it, the Court of
          Criminal Appeals may act only with
          respect to the findings and sentence as
          approved by the convening authority. It
          may affirm only such findings of guilty
          and the sentence or such part or amount
          of the sentence, as it finds correct in
          the law and fact and determines, on the
          basis of the entire record, should be
          approved. In considering the record, it
          may weigh the evidence, judge the
          credibility of witnesses, and determine
          controverted questions of fact,
          recognizing that the trial court saw and
          heard the witnesses.


This statute does not expressly provide a standard of review for

a service appellate court to use in exercising its fact-finding

power.   See also Jackson v. Taylor, 353 U.S. 569, 575-76 (1957).

However, as noted above, in United States v. Sills, 56 MJ at 241

this Court held that a service appellate court should employ the

traditional criminal trial standard of “beyond a reasonable

doubt” in conducting “a de novo review” of the facts.   See

generally Bose Corp. v. Consumers Union of United States Inc.,

466 U.S. 485, 514 n.31 (1984)(defining de novo review as an



                                 2
United States v. Washington, No. 01-0658/AF

“original appraisal of all the evidence”).    Our holding reflected

well-established military law.   See United States v. Boland, 1 MJ

241, 241 (1975)(per curium); United States v. McCrary, 1 USCMA 1,

3, 1 CMR 1, 3 (1951)(Board of Military Review (now Court of

Criminal Appeals) is a trier of fact which must apply a beyond a

reasonable doubt standard); See generally Homer E. Moyer,

Procedural Rights of the Military Accused: Advantages over a

Civilian Defendant, 51 Mil.L.Rev. 1, 28-29 (1971).



    Article 66(c), UCMJ, also does not expressly provide that the

Court of Criminal Appeals afford a military accused a presumption

of innocence in conducting its fact-finding.   Cf. J. Powers, Fact

Finding in the Courts of Military Review, 44 Baylor L. Rev., 457,

465-68 (1992)(suggesting that structure of Article 66(c), UCMJ,

presumes error by trial court until affirmed by Court of Military

Review).   However, a presumption of innocence is clearly

applicable to fact-finding by a court of members at a court-

martial.   Article 51(c), UCMJ, 10 USC § 851(c), states:



           Before a vote is taken on the findings,
           the military judge or the president of a
           court-martial without a military judge
           shall, in the presence of the accused and
           counsel, instruct the members of the
           court as to the elements of the offense
           and charge them-
           (1) that the accused must be presumed to
           be innocent until his guilt is
           established by legal and competent
           evidence beyond reasonable doubt;
           (2) that in the case being considered,
           if there is a reasonable doubt as to the


                                 3
United States v. Washington, No. 01-0658/AF

            accused, the doubt must be resolved in
            favor of the accused and he must be
            acquitted;
            (3) that, if there is a reasonable doubt
            as to the degree of guilt, the finding
            must be in a lower degree as to which
            there is no reasonable doubt; and
            (4) that the burden of proof to
            establish the guilt of the accused beyond
            reasonable doubt is upon the United
            States.


Moreover, as the above statute indicates, the presumption of

innocence is inextricably woven within the traditional criminal

law standard of proof beyond a reasonable doubt.            See generally

Taylor v. Kentucky, 436 U.S. 478 (1978).          Finally, decisions from

this Court and the Court of Criminal Appeals hold that the

presumption of innocence is applicable to the factual review of

the Court of Criminal Appeals.1        See United States v. Pettiford,

9 USCMA 648, 651, 26 CMR 428, 431 (1958); United States v.

Troutt, 8 USCMA 436, 439, 24 CMR 246, 249 (1957); see e.g.,

United States v. Powell, 29 CMR, 688, 701 (N.B.R. 1959); United

States v. Walker, 10 CMR 773, 784-85 (A.B.R. 1952).



    My conclusion that this presumption should be applied by the

Courts of Criminal Appeals is amply supported by the unanimous

decision of this Court in United States v. Crider, 22 USCMA 108,

46 CMR 108 (1963).      There, this Court clearly recognized that

1
  Trial burdens and appellate standards of review are not necessarily
unrelated, especially where a unique appellate statute like Article 66(c),
Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), is involved. See
Steven A. Childress & Martha S. Davis, 1 Federal Standards of Review § 6.03 at
6-21. (3rd ed. 1999).




                                      4
United States v. Washington, No. 01-0658/AF

Congress had uniquely provided service appellate courts with the

same fact finding powers as a trial court.

          Of greater importance is that Courts of
          Military Review possess far-reaching
          powers that are not normally attributes
          of appellate bodies. Article 66(c),
          UCMJ, 10 USC § 866(c), provides that such
          courts

                “. . . may affirm only such
          findings of guilty, and the sentence or
          such part or amount of the sentence, as
          it finds correct in the law and fact and
          determines, on the basis of the entire
          record, should be approved. In
          considering the record, it may weigh the
          evidence, judge the credibility of the
          witnesses, and determine controverted
          questions of fact....”

          Factual determinations by Courts of
          Military Review are binding on this
          Court. United States v. Baldwin, 17
          USCMA 72, 37 CMR 336 (1967); United
          States v. Remele, 13 USCMA 617, 33 CMR
          149 (1963); United States v. Moreno, 5
          USCMA 500, 18 CMR 124 (1955).

            Essentially, the Court of Military
          Review provides a de novo trial on the
          record at appellate level, with full
          authority to disbelieve the witnesses,
          determine issues of fact, approve or
          disapprove findings of guilty, and,
          within the limits set by the sentence
          approved below, to judge the
          appropriateness of the accused’s
          punishment. We believe such a court’s
          exercise of its fact-finding powers in
          determining the degree of guilt to be
          found on the record is more apposite to
          the action of a trial court than to that
          of an appellate body.

Crider, 22 USCMA at 110-11, 46 CMR at 110-11 (emphasis added).

See also United States v. Sikorski, 21 USCMA 345, 348, 45 CMR

119, 122 (1972); McCrary, 1 USCMA at 4, 1 CMR at 4.   Fifty years


                                5
United States v. Washington, No. 01-0658/AF

of military precedent and practice upholding this broad appellate

fact-finding power should not be lightly discarded.2            See

generally United States v. Tualla, 52 MJ 228, 231

(2000)(upholding the doctrine of stare decisis); see generally,

Lester B. Orfield, Criminal Appeals in America 79-91

(1939)(“[p]erhaps the greatest step in the development of the

scope of review in modern times has been that of allowing the

[appellate] court... to review the facts”).



    In any event, a new argument against applying the

presumption of innocence at the Court of Criminal Appeals was

accepted by the service appellate court in this case.             It

cited the Supreme Court decision in Herrera v. Collins, 506 U.S.

390, 399 (1993).     There, the Supreme Court said,

              [o]nce a defendant has been afforded a
            fair trial and convicted of the offense
            for which he was charged, the
            presumption of innocence disappears. Cf.
            Ross v. Moffit, 417 U.S. 600, 610 (1974)
            (“The purpose of the trial stage from the
            state’s point of view is to convert a
            criminal defendant from a person presumed
            innocent to one found
            guilty beyond a reasonable doubt”). Here
            it is not disputed that the State met its
            burden of proving at trial that
            petitioner was guilty of the capital
            murder of Officer Carrisalez beyond a
            reasonable doubt. Thus, in the eyes of
2
  In my view the majority opinion reaffirms the prior decision of this court
in United States v. Troutt, 8 USCMA 436, 24 CMR 246 (1957) and effectively
requires application of the presumption of innocence by the Court of Criminal
Appeals during its factual review of the evidence under Article 66, UCMJ. It
does so to the extent that it implicitly recognizes that for purposes of this
review the burden of proof or persuasion beyond a reasonable doubt is on the
government and it cannot be shifted to the military accused. In my view this
is not a “level playing field.” See generally Taylor v. Kentucky, 431 U.S.
478 (1978).


                                      6
United States v. Washington, No. 01-0658/AF

           the law, petitioner does not come before
           the Court as one who is “innocent”, but,
           on the contrary, as one who has been
           convicted by due process of law of two
           brutal murders.

Id. (emphasis added).


The Court of Criminal Appeals below likewise concluded that the

presumption of innocence disappears for a service member who

comes before the Court of Criminal Appeals after being found

guilty by a court-martial.   United States v. Washington, 54 MJ

936, 941   (A.F. Ct. Crim. App. 2001).   I disagree.



    Herrera, supra, concerns a Supreme Court review of a federal

habeas corpus petition of a state court criminal conviction.

That petitioner had already unsuccessfully challenged his

conviction on direct review, in collateral state proceedings in

the state court, and in a prior federal habeas petition.    The

Supreme Court affirmed the Circuit Court of Appeals denial of

this petition on the basis that, absent a constitutional

violation, a claim of actual innocence based on post-trial

affidavits is not cognizable on such a habeas petition.

Appellant, unlike Herrera, however, is on direct appeal of his

court-martial conviction under Article 66, UCMJ.



    More importantly, Herrera, supra, does not hold or

reasonably imply that a presumption of innocence can never be

afforded an appellant on the appeal of a criminal case.    The



                                 7
United States v. Washington, No. 01-0658/AF

existence of such presumption on appeal is not a constitutional

or common law question, but a question of statutory law.    See

generally Martinez v. Court of Appeals of California, 528 U.S.

152, 160 (2000) (quoting Abney v. United States, 431 U.S. 651,

656 (1977)(“the right of appeal, as we presently know it in

criminal cases, is purely a creature of statute”)).    The Supreme

Court’s pronouncement in Herrera on the status of a criminal

defendant before an appellate court was no more than a general

statement of the law.    Indeed, the federal civilian criminal

justice system, and most state jurisdictions, do not provide for

appellate review of findings of guilty of a trial court for

factual sufficiency.    However, a small minority of

jurisdictions, like the military justice system, do provide for

a factual review by statute, and thus, present a different

appellate scenario not addressed in Herrera.    See People of

Virgin Islands v. Price, 181 F.2d 394 (3rd Cir. 1950); People v.

Bleakley, 508 N.E. 2d. 672 (N.Y. 1987); Commonwealth v. Cadwell,

372 N.E.2d. 246 (Mass. 1978); Clewis v. State, 922 S.W.2d. 126

(Tex. Crim. App. 1996); see generally Lester B. Orfield,

Appellate Review of the Facts in Criminal Cases, 12 F.R.D. 311,

315-16 (1952)(noting six states had statutes permitting review

of facts in criminal cases in 1930).



    Of course, even in this appellate scenario, most of the

jurisdictions which provide for some appellate factual review of

findings of guilty, employ a weight of the evidence standard of


                                  8
United States v. Washington, No. 01-0658/AF

review which might not require application of the presumption of

innocence.    See Bleakley, 508 N.E.2d at 675   But see Price,

supra.    Nevertheless, there is a long established tradition in

military law providing for de novo post-trial review of court-

martial verdicts by reviewing authorities and confirming

authorities using a beyond a reasonable doubt standard of

review.    See Runkle v. United States, 122 U.S. 543, 557 (1887);

William F. Fratcher Appellate Review in American Military Law,

14 Mo. L. Rev. 15, 25, 30-40, 48, 51-52, 60, 66 (1949); William

M. Connor, Reviewing Authority Action in Court-Martial

Proceedings, 12 Va. L. Rev. 43, 54-60 (1926); cf. William M.

Connor, Legal Aspects of the Determinative Review of General

Court-Martial Cases and Article of War 50 1/2, 31 Va. L. Rev.

119 (1944).    Moreover, the overwhelming demand for drastic

reform in military justice after World War II strongly suggests

that Congress intended this same type of appellate review of the

facts (including a presumption of innocence) be conducted by

these newly constructed service appellate courts pursuant to the

UCMJ.    See generally 1 Jonathan Lurie, Arming Military Justice,

130-50 (1992); J.Powers, Fact Finding in the Courts of Military

Review, supra; cf. Hurley v. Irish-American Gay, Lesbian, and

Bisexual Group of Boston, 515 U.S. 557, 567-68

(1995)(recognizing Supreme Court’s authority for independent

appellate review of constitutional facts without deference to

trial courts).    See generally Adam Hoffman, Note, Corralling




                                  9
United States v. Washington, No. 01-0658/AF

Constitutional Fact: De Novo Fact Review in the Federal

Appellate Courts, 50 Duke L.J. 1427, 1430-31 (2001).



    A final question remains whether certain language in Article

66(c), UCMJ, itself precludes or is inconsistent with a

presumption of innocence being applied by the Courts of Criminal

Appeals in their review of the verdicts of courts-martial.

Article 66(c), UCMJ, states in pertinent part



          In considering the record, it may weigh
          the evidence, judge the credibility of
          witnesses, and determine controverted
          question of fact, recognizing that the
          trial court saw and heard the witnesses.

(Emphasis added.)


    An argument is made that the clean slate afforded an accused

at the beginning of a court-martial, see Article 51, UCMJ, can

not be maintained on appeal, once that accused is convicted and

the Court of Criminal Appeals is required to give that verdict

deference.   See Washington, 54 MJ at 941.    Again, I am not

persuaded that this Court should change course.    See also

Hoffman, Note, supra, at 1441-45.



    I would first note that the recognition language noted above

does not stand alone in Article 66(c), UCMJ. This statute broadly

says that the Courts of Criminal Appeals “may affirm only such

findings of guilty. . . as it finds correct... in fact.”      It



                                10
United States v. Washington, No. 01-0658/AF

additionally delineates specific fact-finding powers for that

appellate court which normally are associated only with a trial

court where the presumption of innocence usually operates.

Second, our Court has not attached undue significance to this

language in this statute; rather we generally have considered it

a simple admonition or caution.        See United States v. Doctor, 7

USCMA 126, 137, 21 CMR 252, 263 (1956); United States v. Hendon,

7 USCMA 429, 432, 22 CMR 219, 222 (1956)(“subject only to the

limitations that they bear in mind that the trial forum saw and

heard the witnesses . . . .”).        Third, this Court’s construction

of this language is justified in that the statutory predecessor

of Article 66(c), UCMJ, Article of War 50(g), did not contain

this language, and no explanation of its meaning or purpose is

provided in the legislative history of the UCMJ.3           Finally, as

noted above, the Courts of Criminal Appeals and their

predecessors (the Boards of Military Review and the Courts of

3
  See Articles of War, as amended by the act of June 24, 1948, reprinted in
Manual for Courts-Martial, United States Army 1949. The words “recognizing
that the trial court saw and heard the witnesses” are not unique to Article
66(c), UCMJ. Since 1938, Federal Rule of Civil Procedure 52 has contained
similar language. See 9A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 2571 at 481 (1997); G.K.T., Jr., Note, Rule 52(a):
Appellate Review of Findings of Fact Based on Documentary or Undisputed
Evidence, 49 Va. Rev. 506, 510-16 (1963). That is a civil law rule, however,
and it additionally provides for a clearly erroneous standard of review
placing the burden of persuasion on the appellant. Id. at 2585-87. Similar
language was also used before 1938 with respect to appeals in equity to
describe a judicially created limit on the traditionally broad scope of appeal
in equity which extended even to the facts of a case. See Lester B. Orfield,
Appellate Procedure in Equity Cases: A Guide For Appeals at Law, 90 U. Pa. L.
Rev. 563, 580, 593 (1942); Henry L. McClintock, Handbook of the Principle of
Equity 40 (2nd ed. 1948); cf. William M. Connor, Legal Aspects of the
Determinative Review of General Court-Martial Cases and Articles of War 50½,
31 Va. L. Rev. 119, 152-56 (1944). United States v. Calder, 27 BR 365, 382-83
(A.B.R. 1944). Neither situation is particularly analogous to the broad de
novo review of the facts provided by Congress after World War II as an
innovative response to widely demanded reform of our military justice system.
See 1 Jonathan Lurie, Arming Military Justice 130-50 (1992).



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United States v. Washington, No. 01-0658/AF

Military Review) have historically conducted their Article 66 de

novo review of the facts using a presumption of innocence.     See

Powell, supra; Walker, supra.



    Although I conclude that the Court of Criminal Appeals erred

in rejecting a presumption of innocence, I still must vote to

affirm appellant’s conviction. The Court of Criminal Appeals

alternatively decided this case on the basis of our precedent,

not Herrera, supra, which required it to find proof of guilt

beyond a reasonable doubt in its review of the evidence under

Article 66(c), UCMJ.   54 MJ at 941 (citing United States v.

Turner, 25 MJ 324, 325 (CMA 1987)).   While the presumption of

innocence and the traditional criminal law standard of proof

beyond a reasonable doubt are not synonymous, they overlap to

the extent that they both require the prosecution to prove

beyond a reasonable doubt each and every element of the offense.

See 9 John H. Wigmore, Evidence in Trials at Common Law § 2511

(Chadbourne rev. 1981).   Admittedly, the presumption of

innocence also protects against conviction of the accused based

on the fact of his arrest, his being charged with a crime, or

his presence in the courtroom as a defendant.   However, the

Court of Criminal Appeals, composed of professionally trained

and qualified judges, need no reminder of this law.

Accordingly, the lower appellate court’s disavowal of the

presumption of innocence was harmless error in this case.    See




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United States v. Washington, No. 01-0658/AF

United States v. Velez-Vasquez, 116 F.3d 58, 62 (2nd Cir. 1997);

see also Kentucky v. Whorton, 441 U.S. 786 (1979).4

4
  Concerning the third granted issue in this case, I agree with its resolution
by the majority.




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