Recent ACCA Rape Case Finds Factual Insufficiency Due to Vague Timeline

7/23/2020

In United States v. Gilliam, ACCA held that the facts were insufficient to sustain a conviction for child rape. ACCA found the witness credible--believing that the digital penetration occurred--but could not be satisfied that the penetrative acts occurred during the time charged.

10 Comments

Bill Cassara link

7/23/2020 10:23:04 am

While this will send the Gillibrand crowd into a tizzy, I think it is the right decision. But it seems to me that the case is more of a legal sufficiency review than a factual sufficiency review.

Philip D. Cave link

7/23/2020 10:48:37 am

Brother Bill, Congress has created the problem with their tinkering to get the desired result of a conviction in all cases. That may be the right answer on the facts of each, but the tinkering causes problems like this in "bridge" cases.

We'll have to think the FS/LS issue more closely. If it's FS the case is done? If it's LS it's certifiable?

Bill Cassara link

7/23/2020 01:39:39 pm

Brother Phil: I have had SVC try to get TJAG to certify on FS, but he refused. There is one case out there where CAAF said if ACCA uses the wrong standard for FS, it is certifiable. But for the most part you are correct, FS is not certifiable, while LS is.

Phil Cave link

7/23/2020 01:57:23 pm

Yep, had forgotten the rare wrong FS standard--which makes sense.

Don Rehkopf

7/24/2020 10:34:57 am

Phil - a FS bust equates to an acquittal and jeopardy attaches. No jeopardy if not. LS

William E. Cassara link

7/24/2020 02:11:00 pm

Don: One would think. But I have had the government try to certify a FS bust and there is some case law that says jeopardy may not attach. I think you are right, but am not sure it is clear cut.

Nathan Freeburg

7/23/2020 01:12:33 pm

If they eliminate FS I’d suggest that will lead to two COAs: bootstrapping FS into LS and essentially arguing FS when arguing that an error was not harmless. If an appellate court sees obvious FS they might happen to find an error that at least allows for a rehearing.

Phil Cave link

7/23/2020 01:51:26 pm

1. Keep FS.
2. Keep FS for members cases but not MJA.
3. Get rid of FS BUT enact a robust version of FRCP 29
[https://www.law.cornell.edu/rules/frcrmp/rule_29]

I vote for #3 (it's not my idea).

Currently we have 917, especially now the Rule basically adopts Griffiths. But Rule 29 actually puts an MJ in a better position because she has seen and heard the witnesses.

Contract Lawyer

7/23/2020 11:20:48 pm

I hate like heck that they are allowing a kiddie didler to walk and the only part I agree with is that ACCA ought to have the authority to conduct this review. I don’t think that everyone appreciates the fact that the UCMJ is a package deal that includes features to protect an accused that may not exist in other jurisdictions, but an accused also lacks rights or benefits that exist in other jurisdictions. It is disappointing to see protections stripped while maintaining or increasing the advantages the prosecutor has under the UCMJ.

Scott

7/24/2020 02:18:17 pm

Right - my understanding is that the theory behind FS sufficiency review is that it provides an extra degree of protection for the BRD standard of proof in a system (the only remaining system in the US) where unanimity is not required for a conviction.

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Recent ACCA Rape Case Finds Factual Insufficiency Due to Vague Timeline

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