Ei Incumbit Probation Qui Dicit.

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

We Are Committed To Serving You

Joseph L. Jordan, Attorney at Law travels across the globe to assist in military criminal defense matters.

Installations We Serve

"Unlawful Command Influence" Reverses 2012 Army Rape Conviction

In 2012, Army Staff Sgt. Gabriel C. Garcia was convicted in a court-martial for several sexual offenses, (Maltreatment of several NCO’s & Sexual Harassment of a CW2) the most serious of which were the rape and forced sodomy of an Army paralegal, Staff Sergeant “CC.” Now, three years later, The United States Army Court of Criminal Appeals has issued a reversal of those rape convictions for several errors they believe took place during the trial, including the now-prevalent "unlawful command influence."

As Stars and Stripes reports, both Garcia and CC were stationed in Germany at the time of the alleged incident—which took place years before the 2012 rape conviction. CC's delay in reporting the alleged crime would later become one of several contentious issues in this case, but in her statements, she cited the sudden swell in military sexual assault awareness as inspiration to finally come forward with the allegations. That same political climate, fueled by White House statements and new mandatory sexual assault education efforts among the ranks, would ultimately play a role in Garcia's court-martial and, to the opinion of some, prevent proper due process.

"This is a case where the pressures on the prosecutors caused them to go way beyond what is proper," Garcia's defense lawyer Phil Cave told Stars and Stripes. The pressures he refers to were the expectations that the Army could no longer allow rape allegations to stand without aggressive considerations from the military judicial system. "They knew they weren’t supposed to introduce politics into the case, but they did."

The Original Court Martial

Staff Sergeant CC had met Garcia when they were both stationed in Germany and the two quickly began spending time together. Garcia suggested that they visit a bed and breakfast together, staying in separate rooms. They did, but, after borrowing some sleepwear late at night, CC claims that Garcia returned to her room and raped her.

According to court documents, CC, who has since left the Army, went at great lengths to explain why it took her so much time to come forward with the accusations, the stigma she knew came with taking legal action, and the sudden bombardment of sexual assault rhetoric she had experienced leading up to the trial. As she puts it, becoming a more "seasoned soldier" years later and knowing she had growing institutional support finally let her feel confident in reporting the incident.

Still, she spoke about personal reservations and the grueling emotional and legal process of trying to get the crime fairly tried: "Even as nice as everyone wants to be, you know that they are still looking at you as that girl who may or may not have been raped or the girl who cries wolf... it is not a the position I ever wanted to be in."

As compelling as much of CC's testimony was, there were other details of the trial that would later complicate her claims and the court-martial proceedings:

  • Continued relationship: Following the alleged incident, CC would later dine with Garcia and even spend time with him and his children. She had also sent him provocative photographs— which she insisted were to be passed on to an artist Garcia knew for commission of a pin-up style painting she wanted to purchase for herself.
  • Logical gaps: CC was never able to clarify the circumstances of which Garcia was initially been invited into her B&B room, specifically to lend sleepwear. Also, CC claimed should couldn't remember an exact timeline of events surrounding her interactions with Garcia—such as the sending of the pin-up photographs—even though her initial B&B trip with happened shortly after her deployment in Germany.
  • Veterans' Affairs benefits: Defense counsel was sure to highlight that CC discovered only on exiting the Army, years after the alleged assault, that she would be eligible to certain VA benefits if she had been recognized as a sexual assault victim. In her testimony, CC insisted that this did not play a role in her decision to come forward with the accusations against Garcia.
  • Controversial comments: CC was documented in telling Garcia "I have your career in my hands. If you screw with me and at any moment, I could end this." CC characterized these comments as a joke. The prosecutor also made several errors, such as improperly using "spillover" arguments (insisting that events irrelevant to the case were relevant just because they were circumstantially similar) and characterizing Garcia as a poor parent for having his young son testify in the court-martial.
  • Unlawful command influence: Through much of the case, the political climate concerning the military's past failings and new focus to prosecute sexual crimes became overt. Beyond the factor it played in CC's testimony, the prosecutor also referenced it as "a very big problem" and "at the forefront of what we trying to battle against in the Army today." In one dramatic moment, the prosecutor asked the court to identify whose name was listed in the case titling as the accused, Garcia's or CC's. "It is not fun to be sexually assaulted and then have to be victimized by the [court] process again," the prosecution stated. "Maybe that is why people don't want to report sexual assault?"

The Appellate Opinion

In the decision from The United States Army Court of Criminal Appeals, the court took issue with a numerous elements of this court-martial proceeding. While unlawful command influence was a key factor, there were others as well that prevented a proper look at the facts.

Of the largest issues present, the court cited:

  • Impermissible Spillover Argument: Spillover happens when evidence for one particular charge is considered and used to convict on a completely unrelated charge on the same charge sheet. Said another way, evidence that is relevant only to one particular charge may not be used to convict on a charge, which it is irrelevant. In this case, the government counsel presented an argument that flied completely in the face of this concept. One of the other charges included sexual harassment of a CW2 at a bed and breakfast. The accused invited the CW2 to a bed and breakfast and that is where the allegations of sexual harassment occurred. In contrast, SSG “CC” alleged she was wined and dined, raped and sodomized at the same bed and breakfast. The prosecutor in the case argued in closing “and this is telling, Where did [appellant] want to take [CW2 TF]? To a bed and breakfast.” The defense counsel objected to this line of argument citing spillover and MRE Rule 413. The major concern for defense was that the government was trying to draw an improper link from one charged offense with one alleged victim to another charged offense with a different alleged victim. The trial judge overruled the objection. The appellant court stated that a curative instruction should have been given explaining to the members what improper spillover is and how it applies to this case. It would have alleviated the danger that the panel would improperly use the evidence elicited to prove the sexual harassment against CW2 TF to also prove the offenses against SSG “CC”. Further the court discussed in general terms that it is prohibited to assert that certain, similar circumstances or actions (in this case, Garcia's inviting several women to a B&B during his time in Germany) establish a pattern of criminality when no crime has yet to be confirmed.
  • Unlawful command influence issues: Article 37, UCMJ, provides that “no person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case.” The ruling in this case applauded the court-martial panel's extensive voir dire phase, which allowed much discussion of the political climate, but was then alarmed with how frequently that topic was allowed to appear after that stage of the trial. Even when the judge sustained objections to further mentions, there was not proper direction on how the prosecutor should proceed. Case law specifically cautions counsel to “scrupulously avoid any references to the Army’s policy on sexual harassment during argument.” (US v. Simpson 55 M.J. 674 (Army Ct. Crim. App. 2001). In Garcia, government counsel effortlessly flaunted this rule by citing Army policy objectives as in in-part basis to convict Garcia. Army policy has no bearing on the law. Army policy has no business being in the court room. It improperly confuses the jury and affectively influences them to make decisions consistent with policy as opposed to the law.
  • Constitutional violations: It is inappropriate for any party to a court-martial to profit, directly or indirectly by argument on findings or sentence regarding an exercise of a constitutionally protected criminal due process right. This concept is specifically discussed in US v. Carr 25 M.J. 637 (A.C.M.R. 1987). In this case, the government counsel brazenly argued that “the defense’s decision to bring that poor child here and have to be put in a position to try to help his dad….No child should never have to be put in that position. The assertion that Garcia shouldn't have had allowed his son to testify is constitutionally impermissible. Additionally, Garcia had the right to present all relevant evidence to counter the allegations against him, including his own son's testimony of his and CC's ongoing, friendly interactions following the alleged rape. As the court noted in Garcia, rather than focus on the son’s credibility, or his testimony’s relevance, the government counsel invited the panel to convict appellant because he called his son to testify on his behalf when it was the appellant’s right to do under the Sixth Amendment. The government counsel did not stop there, she next invited the panel to convict appellant because of his exercise of his Sixth Amendment right to confront witnesses against him. An accused has the right to confront his accusers and any other witnesses against him. In this case, the government counsel improperly argued that “it is not fun to be sexually assaulted and then h ave to be victimized by the process again.” The government counsel invited the military panel to convict the panel merely because his counsel cross-examined the alleged victim in this case by stating she was “re-victimized” by going through this process.
  • Prejudice: The appellate court found it surprising that all of the prior issues, when considered together, still resulted in a court-martial conviction with heavy sentencing for Garcia. Interestingly, the appellate court further found that the weight of the evidence concerning SSG “CC” was weak. Ultimately, the court felt that these factors too frequently distracted the trial's examination of the facts, which, on their own, were not strong enough to provide a guilty verdict.

Garcia is currently being held Naval Consolidated Brig Charleston in South Carolina for the upheld guilty verdicts of "maltreatment" of two enlisted women, which only consist of verbal interactions. His lawyer, however, told reporters that he will be filing for Garcia’s release via a habeas corpus petition.

This case stands as a prime example of how important it is to maintain an impartial process inside the courtroom. The efforts that the military is making to prevent sexual assaults are good. However, that campaign has no place in during a court-martial, where only proper procedure and careful handling of relevant facts can ensure that justice will be served. Only experienced and veteran counsel can identify these issues in trial setting up an appeal and result like the one in US v. Garcia.

Are you military member who has been accused of a sexual crime? If so, it is crucial that you retain defense counsel who can protect your rights. Joseph L. Jordan, Attorney at Law is one of the nation's premier military law defense lawyers. With over a decade of experience in the Army, he has come to the defense of service members stationed all over the globe and put the best possible outcome of their case—no matter how serious—within their reach.

Start exploring your legal options today. Contact us to request a free case evaluation.

As Featured In: