Appendices: 1. General Court-Martial (Summer of 2000) 2. BCD Special (Spring of 2000)

• Pages: 03

2002] JURY NULLIFICATION 111

Appendix A

General Court-Martial (Summer of 2000)

(All names below are pseudonyms; citation omitted)

Specialist Taylor was accused of rape, forcible sodomy, adultery, and indecent acts with another. He claimed all acts were consensual. Before trial, he stipulated that he was married and the woman he had sex with was not his wife. Specialist Taylor pled not guilty to all charges and specifications, including adultery. The court-martial lasted two days before an enlisted-member panel.

The defense theory as to the charges of rape and forcible sodomy, as outlined in its opening statement and closing argument, was that the acts were consensual. The defense counsel argued the indecent act (placing his finger in her anus) did not occur. Finally, as to the "consensual offense" of adultery and lesser-included offense of sodomy, the defense strategy was to invoke jury nullification through voir dire, presentation of evidence, and argument. The defense presented a good soldier defense and raised the issue of mistake of fact as to consent with regard to the rape charge. The defense opened its case by stating:

In a "he said/she said" date rape case, it is almost always the case that only the participants will ever know what really happened between them. That is exactly the case here today. Only SPC Taylor and PVT Jones will ever know what happened between them in SPC Taylor's quarters. Despite this, the defense is confident that after hearing the facts and circumstances surrounding PVT Jones's decision to go to SPC Taylor's quarters, to watch movies and drink with him, and the later CID investigation of her claim that she was raped, you will conclude that SPC Taylor did not rape PVT Jones.

What the defense asks you to pay particular attention to is PVT Jones's activities before and after she had sex with SPC Taylor. Also, please pay particular attention to SPC Taylor's conduct before and after he had consensual sex with PVT Jones. Finally, take into consideration the evidence produced by CID's investigation and remember that if this outside evidence is inconclusive or contradicts with PVT Jones's claims-well, remember SPC Taylor is presumed innocent. The burden of proof remains on the trial counsel to prove beyond a reasonable

doubt that SPC Taylor committed an offense under the Uniform Code of Military Justice.

You may have noticed the adultery charge on the flier. Specialist Taylor will take the stand and testify about the consensual sex he had with PVT Jones. Now, SPC Taylor is married and yet he has pled not guilty to the adultery charge. But remember, the burden remains on the trial counsel to prove each and every element of that offense, and all the other charged offenses, beyond a reasonable doubt. This is based on the facts as you determine them to be after hearing evidence in this court-martial, through law that you will receive from the military judge, and you exercising your own conscience.

The defense is confident that after you hear the evidence, receive the law, and apply your conscience to this case, you will be able to find SPC Taylor innocent of rape and not guilty to all charges and offenses.

The second day of trial, the defense completed its case by arguing the following in its closing argument:

In a "he said/she said" date rape case, only the participants will ever actually know exactly what happened between them. Specialist Taylor says the sex was consensual and that he did not place his finger in PVT Jones's anus. Private Jones says the sex was forcible. She claims SPC Taylor forcibly undressed her, that there was a struggle, and that she fought and kicked as he ripped off her shirt. She claims she was raped. She says that during this rape, SPC Taylor committed forcible sodomy on her by holding her down and placing his mouth on her vagina, and that he also forced his finger into her anus.

The defense is confident that based on the evidence you will find that no struggle or rape occurred. Even though none of us were present, when we look at PVT Jones's actions before and after she had sex with SPC Taylor, when we look at SPC Taylor's actions before and after he had sex with PVT Jones, and when we look at the evidence discovered during CID's investigation, we can tell that SPC Taylor is telling the truth. No struggle, no rape, no forcible sodomy, or indecent act occurred. When you analyze the evidence to determine the facts of this case, apply the

law given to you by the military judge, and exercise your conscience, you will be able to find SPC Taylor innocent of rape and forcible sodomy and not guilty to all the other charged offenses.

The burden of proof remains on the government to prove each and every element of each offense beyond a reasonable doubt. In this case, the prosecutor can't meet this burden. Let's take adultery as an example: Specialist Taylor told you the sexual activity between him and PVT Jones was consensual. He also told you he is married and his wife no longer lives with him. You can find SPC Taylor not guilty of adultery because under the law the prosecutor must prove that this consensual relationship somehow prejudiced the good order and discipline of the service. The CID agent who testified yesterday told you that if it weren't for the rape and forcible sodomy allegations, his office would never have investigated PVT Jones's story. In fact, he told you that CID regulations do not allow...