Death of a Daughter

The appellant was convicted of the unpremeditated murder of her daughter by swinging her around and striking her head against a wall, and other offenses. United States v. Harrow, No. 06-0474/AF (C.A.A.F. Jun. 22, 2007). Judge Ryan had the task of answering all 6 issues on which the Court granted review:

(1) A witness who states that he does not remember or recall facts he related in a former statement may be impeached with a prior inconsistent statement. Citing United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993); United States v. Meghadi, 60 M.J. 438, 444 (C.A.A.F. 2005).

(2) The Court somewhat tepidly endorsed the Supreme Court's decision in Mathews v. United States, 485 U.S. 58, 64-65 (1988)): “A simple plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime charged . . . .” Therefore the Government has a right to put on Mil. R. Evid. 404(b) evidence to show intent, even if the accused is not contesting that element of the offense.

(3) Profile Evidence. “Profile evidence is evidence that presents a characteristic profile or trait of an offender, and then places the accused’s personal characteristic or trait within that profile as proof of guilt. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998).” The Court then cited to United States v. Banks for the proposition that

"generally, use of any characteristic 'profile' as evidence of guilty or innocence in criminal trials is improper. 36 M.J. 150, 161 (C.M.A. 1992). Such evidence is improper because it treads too closely to character evidence offered to show than an accused acted in conformity with that character and committed the act in question, evidence prohibited under M.R.E. 404(b). See Banks, 36 M.J. at 161.

Banks actually relied on Mil. R. Evid. 404(a)(1), not 404(b).

The Court concluded that two aspects of the Government expert’s testimony were error because they are focused on characteristics of the abuser, as opposed to characteristics of the child: (1) “the statements that the most common person to fatally abuse a child is a biological parent, and [(2)] the statement that the most common trigger for baby shakings is persistent crying.”

I am at a loss as to how (2) focuses on the characteristics of the accused and then places the accused's character trait within that profile.

This was very harmless error -- only the accused or the girl's father could have done it, so they both fit within the profile.

(4) The appellant claimed her plea to defrauding an insurance company for damages to an automobile was improvident.

We reject Appellant’s suggestion that the military judge’s failure to elicit how Appellant “knew it was her representation that deceived the insurance company,” or “why her misrepresentation was an important factor in the insurance company’s decision to pay,” or “when the $729.65 was paid by the insurance company to Airman Hill,” alone or together, create any basis, let alone a substantial basis, in law or fact for questioning the sufficiency of the plea to this offense. See United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (declining to speculate post-trial on factual matters that might have been contested at trial in the context of examining whether
a guilty plea was provident).

(5) Despite the fact the appellant was an E-1, in reassessing her sentence the AFCCA ordered her reduced to E-1. Error, but no prejudice.

(6) Post-trial and appellate delay. Error in length of time from trial to AFCCA decision (case was sent back twice to fix the promulgating order), but no prejudice.

Chief Judge Effron had reservations with the majority's rationale in answering questions 1 and 3, but concurred in determining any error was harmless.