"Sailor still imprisoned despite court victory in Navy rape case"

2015-08-26T10:28:28-04:00

From: The Sun Herald

WASHINGTON — A Navy enlisted man whose rape conviction was reversed six weeks ago remains imprisoned in South Carolina, caught amid the military’s accelerating campaign against sexual assault.

Now, in an unusual move, attorneys for Airman Dustin M. Clark are urging the same military appeals court that threw out his 2014 conviction to order his immediate release. The 23-year-old Missouri native has already done too much time for a crime he didn’t commit, his attorneys say.

“It’s outrageous,” David P. Sheldon, one of Clark’s attorneys, said in an interview. “They’re making sure he stays in jail.”

It’s rare for a military appeals court to reverse a conviction because of “factual insufficiency,” as the U.S. Navy-Marine Corps Court of Criminal Appeals did with Clark’s conviction July 14. This means the appellate judges thought prosecutors failed to prove their case

The government, though, apparently wants to keep Clark incarcerated at the Naval Consolidated Brig Charleston in South Carolina pending further review, a process that Sheldon estimates could last as long as 10 months.

The Clark case, in turn, is not unfolding in a vacuum. Instead, it’s occurring as the Pentagon reinforces efforts to combat what political and military leaders alike have repeatedly characterized as an “epidemic of sexual assault.”

“I think it contributed to the verdict,” Sheldon said of the current command atmosphere.

The Navy said in a statement that it has 60 days starting from an Aug. 18 court decision to decide whether to appeal, and it has until Sept. 3 to respond to defense requests that Clark be freed. The Navy declined to respond to defense criticisms.

In Fiscal Year 2014, the military reported receiving 6,131 allegations of sexual assault, an 11 percent increase from the year before. Alarmed lawmakers have been pressuring the Pentagon, imposing myriad new reporting requirements and passing what the Defense Department calls “the most sweeping reform to the Uniform Code of Military Justice since 1968.”

With Clark, the Navy has shown no sign of giving up.

The case revolves around the disputed events of March 24, 2012. A woman said that Clark assaulted her following a night of heavy drinking. She reported the alleged rape to law enforcement three months later.

“She...testified that while ‘making out’ with (Clark) on the couch earlier that night, she told him she was not interested in having sex with him,” judges later recounted.

The woman further testified that “throughout the evening she engaged in consensual amorous activity with three different men” before ultimately blacking out, judges noted.

A Navy commander found Clark guilty on Feb. 21, 2014, of rape and forcible sodomy, in a court martial held at the Washington, D.C. Navy Yard. The judge sentenced Clark to seven years in prison and a dishonorable discharge.

A three-judge panel of the U.S. Navy-Marine Corps Court of Criminal Appeals unanimously reversed Clark’s conviction, noting the lack of DNA evidence and the “disorganized” and partial memories belatedly recounted by the alleged victim.

The government asked for en banc reconsideration by all of the court’s judges. That kept Clark locked up.

After the judges quickly denied the request, a government attorney advised he would recommend that officials ask for review by the U.S. Court of Appeals for the Armed Forces, the nation’s highest military court. This, too, would keep Clark in the brig pending resolution.

The government typically only asks the high military court to review a lower court’s decision about 10 times a year. The court is limited to matters of law, and does not delve into the facts of an alleged crime.

“His current confinement is illegal,” wrote Marine Corps Major Brian Magee, one of Clark’s defense attorneys, adding that “every day the government holds him in confinement...brings Airman Clark, his wife, his parents and the rest of his family additional and needless suffering.”

This week, responding to the defense attorneys’ petition for a writ of habeas corpus, the lower-level Navy and Marine Corps court gave the government until Sept. 3 to provide reasons why Clark should not be released.

http://www.sunherald.com/2015/08/25/6382222_sailor-still-imprisoned-despite.html?rh=1#storylink=cpy

Response by SCPO David Lockwood made Aug 26 at 2015 10:42 AM

2015-08-26T10:42:02-04:00

That's crazy!

Response by MSgt Curtis Ellis made Aug 26 at 2015 10:44 AM

2015-08-26T10:44:42-04:00

After reading this article, I believe this Sailor is being used as an example... If they wanted a legit case to make an example of, all they had to do was wait as I'm sure some idiot (male or female) would have shown up sooner or later...

Response by MCPO Roger Collins made Aug 26 at 2015 11:08 AM

2015-08-26T11:08:07-04:00

There is another thread regarding sexual assault in the military. This should be there to see what a witch hunt creates.

Response by CAPT Kevin B. made Aug 26 at 2015 11:39 AM

2015-08-26T11:39:43-04:00

Released to do what? Are there other charges pending? There's way to many holes in this story and easy to make bad assumptions. Maybe the brig is the safest place for him to be. Who knows? BTW, lawyers whining to essentially treat the sailor like a civilian doesn't gain much traction in my credibility book either.

Response by LCDR Rabbah Rona Matlow made Aug 26 at 2015 11:46 AM

2015-08-26T11:46:49-04:00

This is not proof of innocence - this was a reversal on a technicality. It's clear that the Navy legal system is trying to decide if other charges are also merited.

Response by PO2 Corey Ferretti made Aug 26 at 2015 11:49 AM

2015-08-26T11:49:57-04:00

It almost looks like they are using him to make an example. But this is just one side of the stories and with out fully knowing the case I can't take a side. Hope this is resolved on way or another very quickly.

Response by SN Greg Wright made Aug 26 at 2015 12:10 PM

2015-08-26T12:10:42-04:00

Another case of PC gone wrong. Someone has decided that this guy is their poster child for sexual abuse, and they're willing to break the law to hold him up.

Response by CDR Michael Goldschmidt made Aug 26 at 2015 3:34 PM

2015-08-26T15:34:03-04:00

Damned lawyers. What are they waiting for? An overturned conviction should translate into immediate release.

Response by Sgt Private RallyPoint Member made Aug 26 at 2015 5:45 PM

2015-08-26T17:45:30-04:00

Just another sad case of a knee-jerk reaction that is starting to backfire on the military court, and now they are trying to save face on a case they cant win and in the end that will be an even bigger blow than if they just admitted they messed up in the first place.

Response by SSG Robert Webster made Aug 26 at 2015 6:48 PM

2015-08-26T18:48:38-04:00

My question - What happened to the two other men, that could be possible suspects? Could that be the question the Court was asking when this was overturned? That could be the gap in information that we have not yet been privy to.

Response by PO2 Arlynn Dornis made Aug 26 at 2015 8:36 PM

2015-08-26T20:36:26-04:00

https://www.courtlistener.com/opinion/2817786/united-states-v-clark/

Response by PO1 Glenn Boucher made Aug 27 at 2015 12:34 PM

2015-08-27T12:34:30-04:00

I'm not legally trained but after 24 years of service and seeing all kinds of legal issues unfold this one seems kind of fishy. How come 3 months later did she complain? Where is the physical evidence after 3 months? Drinking and making out with several different partners and only one was charged? Unless the others were charged and not publicized.
It seems like a pretty weak case overall and if the conviction has been overturned then I would say an immediate release is due unless the Navy is looking to take on a huge civil lawsuit.

Response by PO1 John Miller made Aug 28 at 2015 7:11 AM

2015-08-28T07:11:55-04:00

So what it all boils down to is that even though the conviction was overturned due to insufficient evidence, this Sailor remains in the brig.

I read the transcript that someone else posted as well. Both the plaintiff and defendant had been drinking yet only the defendant was charged with any type of crime. The Navy and military in general always say that if you're drunk you cannot consent, but I guess that's only for women? Or am I missing something here?

Response by 1LT Private RallyPoint Member made Dec 20 at 2015 4:10 PM

2015-12-20T16:10:38-05:00

The military has all kinds of ways of holding onto people. According to MCM, there are four types of confinement: conditions on liberty, restriction in lieu of arrest, arrest, and then confinement... The first three are really the same thing. But the military can impose these and simply say that they are not punishment and then they are good to go.

So technically he is under confinement pending the disposition of offenses. This is hour the military can get away with this. It's a really sad situation. I An going through something similar myself where there are "conditions on my liberty" and I am restricted to post and my room, not allowed to drink, and my leave privileged are revoked; however, this is "not punishment." It's been like this for almost a year as I wait for the trial.

Unfortunately, this is how UCMJ works for allegations of sexual assault... Regardless of the evidence.

So your best bet is to avoid all women while serving in the military... Especially women in the military. IMHO.

But I started working on a project about a year ago to try to prevent false allegations. It's on Facebook at http://www.Facebook.com/withutheapp

Facebook

Response by SCPO Joshua I made Dec 20 at 2015 6:16 PM

2015-12-20T18:16:52-05:00

It seems that the Navy JAG is trying to appeal this case to CAAF. I'm not sure that's even legal, but there's a note on caaflog that he's been released.

http://www.caaflog.com/2015/10/20/the-navy-jag-certifies-clark/

The Navy JAG certifies Clark

A few weeks ago – in this post – I discussed the NMCCA’s per curiam opinion that reversed convictions of rape and forcible sodomy because the CCAfound the evidence presented at t…

Response by SGM Erik Marquez made Mar 18 at 2019 10:05 AM

2019-03-18T10:05:03-04:00

http://www.jag.navy.mil/courts/documents/archive/2015/CLARK-201400232-PCE.PDF

CLARK-201400232-PCE.PDF

Response by SGM Erik Marquez made Mar 18 at 2019 10:07 AM

2019-03-18T10:07:11-04:00

And then the Writ for release was denied http://www.jag.navy.mil/courts/documents/archive/2015/CLARK-201400232-ExWrit.PDF

CLARK-201400232-ExWrit.PDF