United States v. Specialist SABRINA D. HARMAN , 66 M.J. 710 ( 2008 )

CORRECTED COPY
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
GALLUP, CHIARELLA, and MAGGS
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist SABRINA D. HARMAN
United States Army, Appellant
ARMY 20050597
Headquarters, III Corps and Fort Hood
James A. Pohl, Military Judge
Colonel Clyde J. Tate, II, Staff Judge Advocate (pretrial)
Colonel Mark Cremin, Staff Judge Advocate (post-trial)
For Appellant: Frank J. Spinner, Esq. (argued); Captain Seth A. Director, JA; Frank
J. Spinner, Esq. (on brief).
For Appellee: Captain Teresa T. Phelps, JA (argued); Major Elizabeth G. Marotta,
JA; Major Tami L. Dillahunt, JA; Captain Teresa T. Phelps, JA (on brief)
30 June 2008*
-------------------------------------------------------
OPINION OF THE COURT
-------------------------------------------------------
MAGGS, Judge:
Contrary to her pleas, a panel composed of enlisted and officer members
convicted appellant of conspiracy to maltreat detainees, dereliction of duty by
willfully failing to protect detainees from abuse, and maltreatment of detainees (four
specifications), in violation of Articles 81, 92, and 93, Uniform Code of Military
Justice, 10 U.S.C. §§ 881, 892, 893 [hereinafter UCMJ]. The panel sentenced
appellant to reduction to Private E1, forfeiture of all pay and allowances,
confinement for six months, and a bad-conduct discharge. The military judge
credited appellant with 51 days towards her sentence of confinement because of
illegal pretrial punishment. The convening authority approved only so much of the
sentence as provides for reduction to Private E1, confinement for six months,
forfeiture of all pay and allowances for six months, and thereafter forfeiture of
$1,092.00 per month until the date the discharge is ordered executed, and a bad-
conduct discharge. The convening authority also credited appellant with 51 days of
*Corrected
HARMAN – ARMY 20050597
confinement credit against the sentence to confinement. In our decretal paragraph,
we amend the specification of one charge, but otherwise affirm the approved
findings and sentence.
I. FACTS
Appellant was a member of the 372nd Military Police Company, a reserve unit
headquartered in Maryland. In May 2003, she deployed with the 372nd to Iraq. In
August 2003, her unit assumed duties at the Baghdad Central Confinement Facility
at Abu Ghraib, Iraq. At Abu Ghraib, appellant served as a guard in a prison
structure called “Tier 1” (also known as “the hard site,” to distinguish it from tent
encampments holding other prisoners).
The charges in this case arise out of three incidents that occurred in Tier 1
during the fall of 2003. Evidence concerning these incidents comes principally from
the testimony of the soldiers involved, from witnesses not implicated in the
incidents, from photographs and video recordings made during the incidents, from
two sworn statements that appellant made to investigators, and from a letter that
appellant wrote on 20 October 2003 to her former roommate in the United States.
The Incident of 25 October 2003
The record contains evidence that, on 25 October 2003, several military
policemen (MPs) from the 372nd took it upon themselves to “punish” three Iraqi
detainees who allegedly had raped a male Iraqi juvenile in the confinement facility.
Acting without any claimed or apparent authorization, the persons responsible
allegedly screamed at the detainees, ordered them to take off their clothes, and then
forced them to crawl and roll down the prison hallway so that their genitals scraped
the floor. The soldiers subsequently handcuffed the detainees to each other and
posed them in positions to make it appear that they were having homosexual
relations. During this time, soldiers took pictures of the detainees. As described
below, however, the panel determined that appellant was not guilty of any charges
arising out of this incident. We therefore do not consider any of this evidence when
assessing the legal and factual sufficiency of the charges.
The Incident of 4 November 2003
On 4 November 2003, a separate incident took place in Tier 1 involving a
detainee whom the MPs called “Gilligan.” Photographs taken by Staff Sergeant
(SSG) IF show the detainee wearing what appears to be a poncho, with his head and
face hooded by an empty sandbag. The detainee is standing on a Meals Ready to Eat
(MRE) box (i.e., a carton containing a common kind of rations). Wires are attached
to his hands. When asked about the detainee, appellant said in a sworn statement to
investigators:
2
HARMAN – ARMY 20050597
He is nicknamed Gilligan . . . . He was just standing on the MRE box
with the sandbag over his head for about an hour. I put the wire on his
hands. I do not recall how. I was joking with him and told him if he
fell off he would get electrocuted. . . .
...
We were not hurting him. It was not anything that bad.
SSG IF presented similar testimony, although he said that he had put wires on the
detainee.
The Incident of 7 November 2003
On 7 November 2003, some detainees in a tent encampment outside Tier 1
participated in a riot. For greater security, soldiers transferred seven of the
suspected leaders of the riot onto Tier 1. These detainees were suspected of various
serious street crimes, including rape. When the prisoners arrived at Tier 1, they
were hooded and handcuffed. Acting without any claim of authority, MPs from the
372nd took it upon themselves to “discipline” these seven detainees. Appellant
admitted in her sworn statement that she saw what was taking place, retrieved a
digital camera, and then went to join the soldiers.
Shortly after their arrival at the prison, the MPs forced the detainees to sit or
lie down on the floor in a pile. While they were on the ground, Sergeant (SGT) JD
stomped on their fingers and toes and Corporal (CPL) CG kneeled on the top of the
pile. Shortly afterward, SSG IF and CPL CG punched two of the hooded and
handcuffed detainees. Appellant witnessed these actions but took no steps to
prevent them. On the contrary, Appellant took a picture of CPL CG posing with his
armed cocked, ready to punch a hooded detainee. Other soldiers also took
photographs and videos throughout the evening.
The MPs subsequently stripped the detainees of their clothes. In her sworn
statement, appellant admitted that she used a marker to write “I’m a rapeist (sic)” on
the leg of a naked detainee accused of rape. Photographs admitted into evidence
show these words starting on or near the detainee’s buttocks and running down the
back of his thigh.
When the detainees were naked and handcuffed, CPL CG arranged them to
form a human pyramid. Appellant witnessed this misconduct and did not report it.
Instead, she took a picture of CPL CG and Private First Class (PFC) LE posing with
the pyramid of detainees. Appellant then posed for a picture with CPL CG. In the
picture, they are smiling and a giving a “thumbs up” symbol with their hands, with
3
HARMAN – ARMY 20050597
appellant leaning over the detainee pyramid. Other forms of misconduct allegedly
occurred later in the evening, but the evidence did not implicate appellant.
Appellant did not report the incidents of 4 November or 7 November to her
chain of command or to anyone else in authority. In her letter of 20 October 2007 to
her former roommate, appellant expressed concern about mistreatment of detainees
prior to these three incidents. She wrote: “Again, I thought, okay[,] that’s funny,
then it hit me, that’s a form of molestation. You can’t do that. . . . The only reason
I want to be there is to get the pictures that prove that the U.S. is not what they
think.” At no time, however, did appellant turn over any photographs until she came
under investigation in January 2004.
II. Issues Arising from the Bill of Particulars
Charge II alleges that appellant committed the offense of dereliction of duty
in violation of Article 92. The single specification of this charge asserts that
appellant “[w]ho knew, of her duties at or near Baghdad Central Correctional
Facility, Abu Ghraib, Iraq, from on or about 20 October 2003 to about 1 December
2003, was derelict in the performance of those duties in that she willfully failed to
protect Iraqi detainees from abuse, cruelty and maltreatment, as it was her duty to
do.” Before trial, appellant moved for a bill of particulars, which the government
provided. This bill of particulars, as slightly amended, was subsequently submitted
to the panel on both the flyer before trial and the findings worksheet used during
deliberations. On the findings worksheet, the bill of particulars reads as follows:
1. On or about November 4, 2003, the accused assisted in placing a detainee on a
Meals Ready to Eat (MRE) box, sandbag on his head, wires attached to his
hands, who was told that if he fell off of the box, he would be electrocuted.
2. On or about November 4, 2003, the accused placed a wire on the detainee’s
hand.
3. On or about November 4, 2003, the accused photographed and witnessed
photographs being taken of the detainee standing on the box with wires
attached to his hands and did not stop or report this abuse.
4. On or about the night of November 7, 2003, the accused witnessed detainees
forced into a pile on the floor with [CPL CG] kneeling on top of said pile and
did nothing to stop or report the abuse.
5. On or about the night of November 7, 2003, the accused posed for a
photograph with the detainees stripped and placed in a “human pyramid.”
6. On or about the night of November 7, 2003, the accused witnessed fellow
4
HARMAN – ARMY 20050597
soldiers taking photographs of detainees while abuse occurred and did nothing
to stop or report the abuse.
7. On or about the night of November 7, 2003, the accused witnessed SSG [IF]
punch a detainee in the chest and did not stop or report this abuse.
8. Throughout the entire time frame, the accused witnessed other military police
soldiers photographing detainees and did nothing to stop or report this abuse.
9. On or about 24-25 October, the accused witnessed other soldiers physically
abusing detainees and handcuffing them together while naked and did nothing
to stop or report this abuse.
When the panel returned its verdict, the panel announced that it had found
appellant guilty of the Specification of Charge II and Charge II, with the exception
of the language in paragraphs 1 and 9 of the bill of particulars as quoted above.
The court-martial’s procedure in connection with this finding was irregular.
Under Rule for Courts-Martial [hereinafter R.C.M.] 918(a), a court-martial makes
findings only on specifications and charges. A bill of particulars is not a charge,
and it is not a specification or even part of a specification. See United States v.
Rivera, 62 M.J. 564, 566 (C.G. Ct. Crim. App. 2005). The Discussion to R.C.M.
906(b)(6) explains that a bill of particulars serves “to inform the accused of the
nature of the charge with sufficient precision to enable the accused to prepare for
trial” and that a bill of particulars “need not be sworn because it is not part of the
specification.” Accordingly, the military judge should not have required the panel
to make findings on the bill of particulars.
In addition, the form of the finding is also irregular. A panel may find an
accused guilty of a specification with exceptions. See R.C.M. 918(a)(1). But the
exceptions must eliminate language that appears in the specification. See R.C.M.
918(a)(1) discussion (“One or more words or figures may be excepted from a
specification . . . .”). In this case, when the panel found appellant guilty of the
Specification of Charge II with exceptions, the exceptions purported to remove
language which appeared in the bill of particulars, but not in the specification itself.
In these unusual circumstances, the Manual for Courts-Martial offers no clear
guidance on the legal effect of the exceptions. To avoid prejudice to the appellant,
and with consent given by government counsel at oral argument, we take these three
steps:
First, we conclude that the panel intended to find appellant not guilty of any
offense arising out of the incident that occurred on 24-25 October 2003 because the
panel made an exception for item 9 of the bill of particulars. Apart from item 9 of
5
HARMAN – ARMY 20050597
the bill of particulars, nothing else in the charge sheet addresses the events of this
period. Accordingly, in reviewing appellant’s finding of guilt, we will not take into
account any evidence concerning these dates.
Second, in our decretal paragraph, we will revise the specification to
substitute the word and figures “4 November 2003” for “20 October 2003.” We take
this action because item 9 is the only act listed in the bill of particulars that occurred
before 4 November 2003. This action will avoid any possible prejudice to
appellant.
Third, in view of the panel’s exception for item 1 of the bill of particulars, we
conclude that the panel intended to find appellant not guilty of “assisting” in the
placement of wires on the hands of the detainee nicknamed “Gilligan” during the
incident of 4 November 2003. We do not conclude, however, that the panel intended
to acquit appellant of all misconduct that occurred on 4 November 2003. The panel
found, in Specification 3 of Charge III, that appellant “at or near Baghdad Central
Correctional Facility, Abu Ghraib, Iraq, on or about 6 November 2003, did maltreat
a detainee, a person subject to her orders, by placing wires on the detainee’s hands
while he stood on a Meals Ready to Eat box with this (sic) head covered and then
telling him if he fell off the box he would be electrocuted.” Thus, we conclude that
the panel found that appellant did not provide assistance, but that she did commit the
act herself.
III. Factual and Legal Sufficiency of the Evidence
Appellant contends that the evidence is legally and factually insufficient to
sustain her conviction. The test for legal sufficiency of the evidence is “whether,
considering the evidence in the light most favorable to the prosecution, a reasonable
fact finder could have found all of the essential elements beyond a reasonable
doubt.” See United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987). Further, in
resolving legal-sufficiency questions, we are bound to draw every reasonable
inference from the evidence of record in favor of the prosecution. See United States
v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000). The test for factual sufficiency is
“whether, after weighing the evidence in the record of trial and making allowances
for not having personally observed the witnesses, the members of [the appellate
court] are themselves convinced of the accused’s guilt beyond a reasonable doubt.”
Turner, 25 M.J. at 325.
A. Charge I—Conspiracy
Charge I alleges that appellant committed the offense of conspiracy in
violation of Article 81, UCMJ. The single specification asserts that appellant “[d]id,
at or near Baghdad Central Correctional Facility, Abu Ghraib, Iraq, on or about
8 November 2003, conspire with Staff Sergeant [IF], Sergeant [JD], Corporal [CG],
6
HARMAN – ARMY 20050597
Specialist [JS], Specialist [MA] and Private First Class [LE], to commit an offense
under the Uniform Code of Military Justice, to wit: maltreatment of subordinates,
and in order to effect the object of the conspiracy the said Specialist Harman posed
for a ‘thumbs up’ photograph with said Corporal [CG] behind a pyramid of naked
detainees.”
To obtain a conviction for conspiracy, the government must prove the
following two elements beyond a reasonable doubt: “(1) That the accused entered
into an agreement with one or more persons to commit an offense under the code;
and (2) That, while the agreement continued to exist, and while the accused
remained a party to the agreement, the accused or at least one of the co-conspirators
performed an overt act for the purpose of bringing about the object of the
conspiracy.” Manual for Courts-Martial, United States (2005 ed.) [hereinafter
MCM], Part IV, para. 5b. For the first element, the government’s theory, apparently
accepted by the panel, was that appellant’s conduct both in taking pictures of the
maltreatment and posing in pictures depicting maltreatment demonstrates that she
entered into a non-verbal agreement with the other guards to maltreat detainees. For
the second element, the government’s theory was that posing in the “thumbs up”
photograph was an overt act.
Appellant contends that the evidence did not prove beyond a reasonable doubt
that she formed an agreement to commit the maltreatment of subordinates or that she
had the specific intent to commit the crime. To support this position, she makes
three arguments. First, she asserts that as the most junior enlisted member assigned
to perform duties in her part of the prison, she had no choice but to be present when
many of the activities characterized as maltreatment occurred. Her passive presence,
she contends, does not show the existence of a conspiracy. We disagree. As the
government argues, while appellant’s presence at the prison was mandatory, her
misconduct was not. She did not have a duty to appear in a “thumbs up” picture
with CPL CG behind the pyramid of naked detainees, to take pictures herself, or to
engage in any other concerted misconduct. Her entering into a conspiracy and her
participation in the specified overt act were voluntary.
Second, appellant argues that, while she did pose for a “thumbs up”
photograph with CPL CG, this photograph does not prove that she shared any
common purpose with him to abuse detainees. On the contrary, she asserts, this
photo indicates simply that she was posing for a picture as she often did in many of
her experiences in Iraq. She contends that the court-martial had no justification for
drawing inferences from her act of smiling in the photograph. We disagree. Her
smiling face, when seen with the “thumbs up” hand signals, shows approval and
encouragement to her co-conspirators as they maltreated the prisoners. An inference
that she was joining their purpose is justified.
7
HARMAN – ARMY 20050597
Third, she contends that the letter that she wrote on 20 October 2003 shows
that she did not have the requisite intent. In the letter, as quoted above, she
describes abuse in the prison to her roommate in the United States. She says: “The
only reason I want to be there is to get the pictures that prove that the U.S. is not
what they think.” Appellant asserts that this comment demonstrates that she wanted
to report criminal wrongdoing and that she would not agree to join a conspiracy. We
disagree. Appellant’s conscience may have been in one place on 20 October 2003
when she realized that maltreating detainees was wrong, but her intentions and
actions were in another when she joined in and encouraged the abuse on 8 November
2003. The circumstances show that she had the intent to commit the offense of
conspiracy. We conclude that the evidence was legally and factually sufficient to
support her conviction of Charge I and its Specification.
B. Charge II—Dereliction of Duty
We have quoted Charge II, its Specification, and the bill of particular in
section II of our opinion above. The charge alleges that appellant committed the
offense of dereliction of duty in violation of Article 92. The specification asserts
that appellant “[w]ho knew, of her duties at or near Baghdad Central Correctional
Facility, Abu Ghraib, Iraq, from on or about 20 October 2003 to about 1 December
2003, was derelict in the performance of those duties in that she willfully failed to
protect Iraqi detainees from abuse, cruelty and maltreatment, as it was her duty to
do.”
To obtain a conviction for willful dereliction of duty, the Government must
prove beyond a reasonable doubt: “(l) That the accused had certain duties; (2) That
the accused knew or reasonably should have known of the duties; and (3) That the
accused was willfully derelict in the performance of those duties.” See MCM, Part
IV, para 16b(3). The government’s theory, accepted by the court-martial, was that
appellant violated these elements through the conduct detailed in items 2 through 8
of the bill of particulars quoted above.
Appellant argues that the evidence is legally and factually insufficient to
sustain her conviction for two principal reasons. First, she contends that the
evidence does not show that she knew or reasonably should have known of her duties
to protect the detainees. She asserts that she was not adequately trained to serve as a
prison guard and was not adequately trained in the law of armed conflict. She
emphasizes that her company commander testified that her unit was unprepared to
perform the mission they were assigned at Abu Ghraib. In addition, given that
nudity and handcuffing detainees was common in the prison, she asserts that it was
not clear which acts were permissible and which ones were not.
We disagree. Appellant may not have had the ideal training, or even good
training, for serving in the prison. Her unit certainly did not behave as a well-
8
HARMAN – ARMY 20050597
trained military police company should. But the facts and reasonable inferences
from the facts establish beyond a reasonable doubt that appellant knew that her
duties included protecting Iraqi detainees from the kinds of abuse, cruelty, and
maltreatment alleged in the specification and in the portions of the bill of particulars
of which she was found guilty. On a previous occasion, appellant and another
member of her company, SPC MA, removed the handcuffs from a detainee who had
been handcuffed for six hours and reported the incident to a non-commissioned
officer, an action which resulted in the removal of the responsible MP from duties at
the location. In addition, SSG IF testified that prison guards knew that they had a
duty to protect and care for the detainees. Finally, in her own letter of 20 October
2003, appellant recognized the wrongfulness of the misconduct. This evidence
supports the conclusion that she knew her duties.
Second, appellant argues that she was not derelict in her duties because she
was in fact taking steps to expose the abuse, as her letter of 20 October 2003
indicates. She asserts that she was taking photographs to document her company’s
misconduct, which she was planning to report. We disagree with this argument.
Even if we credit what she said in her letter, she was still derelict when she
committed the acts detailed in items 2 through 8 of the bill of particulars. She was
derelict in her duties when she attached the wires to the hands of the detainee
nicknamed “Gilligan” and threatened him with electrocution, as alleged in items 2
and 3 of the bill of particulars. She was also derelict in her duties when she posed in
a “thumbs up” photograph as alleged in item 5 of the bill of particulars. She did not
take these actions to reveal the wrongdoing of others. In addition, when she
witnessed the misconduct of others alleged in items 4, 5, 7, and 8 of the bill of
particulars she did nothing to stop it. Although she did take pictures, she did not
contact any person in authority to report the misconduct or to turn over the pictures.
C. Charge III—Maltreatment
Charge III accuses appellant of cruelty and maltreatment in violation of
Article 93. To obtain a conviction of this offense, the government must prove
beyond a reasonable doubt: “(1) That a certain person was subject to the orders of
the accused; and (2) That the accused was cruel toward, or oppressed, or maltreated
that person.” MCM, Part IV, para. 17b. The MCM does not define cruelty,
oppression, or maltreatment, other than to say that the offending conduct is “not
necessarily physical” and that it “must be measured by an objective standard.” Id. at
para. 17c(2). Our superior court, however, clarified the offense in United States v.
Carson, 57 M.J. 410, 415 (C.A.A.F. 2002). The parties agree that this case controls.
In Carson, the court explained: “The essence of the offense is abuse of
authority. Whether conduct constitutes maltreatment within the meaning of Article
93, UCMJ, in a particular case requires consideration of the specific facts and
circumstances of that case.” Id. at 415 (emphasis in original). The court in Carson
9
HARMAN – ARMY 20050597
recognized that the Military Judges’ Benchbook includes “a nonbinding model
instruction describing maltreatment as ‘unwarranted, harmful, abusive, rough, or
other unjustifiable treatment which, under all the circumstances . . . results in mental
or physical pain or suffering.’ ” See id. at 413 (quoting Dep’t of Army Pam. 27-9,
Legal Services: Military Judges’ Benchbook, para. 3-17-1 (1 April 2001)). But the
court did not agree that the government must prove that the victim actually suffered
harm, as the model instruction indicated. The court said:
We conclude that in a prosecution for maltreatment under Article 93,
UCMJ, it is not necessary to prove physical or mental harm or suffering
on the part of the victim, although proof of such harm or suffering may
be an important aspect of proving that the conduct meets the objective
standard. It is only necessary to show, as measured from an objective
viewpoint in light of the totality of the circumstances, that the
accused’s actions reasonably could have caused physical or mental
harm or suffering.
Id. at 415.
Specifications 1 and 2
Specification 1 of Charge III alleges that appellant “at or near Baghdad
Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003 did
maltreat several detainees, persons subject to her orders, by taking two or more
photographs of the naked detainees in a pyramid of human bodies.” Specification 2
alleges that appellant “at or near Baghdad Central Correctional Facility, Abu Ghraib,
Iraq, on or about 8 November 2003, did maltreat a detainee, a person subject to her
orders, by photographing another guard, Corporal [CG], with one arm cocked back
as if he was going to hit the detainee in the neck or back.”
Appellant argues that the evidence is legally and factually insufficient to
support her conviction of these two specifications because no detainee testified
during the findings portion of the trial that he felt maltreated by appellant or that he
was even aware that she took photographs of him. We disagree. As explained
above, in Carson, our superior court specifically held that the government need not
prove that the victims of maltreatment actually suffered harm.
In the totality of the circumstances, we conclude that appellant’s actions
described in Specifications 1 and 2 constitute maltreatment. Taking the photographs
reasonably could have caused the detainees mental suffering. No reasonable
detainee would want to be abused and, more importantly here, would wish his
abusers to record this pointless, humiliating conduct. The detainees, in addition, had
no ability to leave or to object or to do anything but what they were told. Appellant
abused her authority as a guard in photographing the detainees.
10
HARMAN – ARMY 20050597
At oral argument, counsel for appellant contended that taking the photographs
was trivial in comparison to other misconduct at the prison that has gone uncharged
and that may even have been sanctioned by persons in authority. We recognize that
context matters. As our superior court said in Carson:
Appropriate conduct can only be discerned by examination of the
relevant surrounding circumstances. For example, what is condoned in
a professional athletes’ locker room may well be highly offensive in a
house of worship. A certain amount of banter and even profanity in a
military office is normally acceptable and, even when done in “poor
taste,” will only rarely rise to the level of criminal misconduct.
Id. at 413 (quoting United States v. Hanson, 30 M.J. 1198, 1201 (A.F.C.M.R. 1990).
Appellant’s conduct, however, clearly crossed the line even in its own context, a
rough prison in a war zone holding dangerous detainees suspected of serious
criminal offenses. Any reasonable observer would agree that taking the photographs
of the detainees was abusive. The photographs served no purpose other than to
humiliate and degrade.
Specification 3
Specification 3 of Charge III alleges that appellant “at or near Baghdad
Central Correctional Facility, Abu Ghraib, Iraq, on or about 6 November 2003, 1 did
maltreat a detainee, a person subject to her orders, by placing wires on the
detainee’s hands while he stood on a Meals Ready to Eat box with this (sic) head
covered and then telling him if he fell off the box he would be electrocuted.”
Appellant contests the legal and factual sufficiency of the evidence on this
specification on several grounds.
First, appellant argues that placing wires on a detainee’s hands and telling
him that he would be electrocuted, when the wires were not, in fact, connected to
any electrical outlet, does not constitute maltreatment. We disagree. The evidence
shows that the detainee had an empty sandbag over his head as a hood. A reasonable
inference is that he was limited in his ability to see whether the wires actually were
connected to an electrical outlet. Indeed, the photographs themselves do not show
where the wires lead. In addition, the panel could infer, as do we, that appellant
would not have told the detainee that he would be electrocuted, and the detainee
would not have stood on the box for over an hour, if the threat of electrocution was
not credible in the mind of the detainee. This conduct was abusive and constitutes
maltreatment under the standards in Carson.
1
At trial, the parties agreed that the relevant conduct had occurred on 4 November
2003, but chose not to alter the specification as it included the language “on or
about” 6 November 2003.
11
HARMAN – ARMY 20050597
Second, appellant asserts that the detainee did not testify and there was no
evidence that he was traumatized by these acts in any way. Again, under the
standard in Carson, we conclude that a reasonable person would feel frightened and
threatened. The detainee’s actual testimony was not necessary.
Third, appellant argues that the evidence is insufficient because SSG IF
testified that he was the one who put the wires on the detainee. This argument,
however, ignores appellant’s sworn statement in which she admitted that she put the
wires on him. We see no conflict. Both soldiers were present, and their own
statements show that they each placed the wires on the detainee.
Finally, appellant argues, consistent with her sworn statement, that she
believed they were joking when they put the wires on the detainee and that she did
not believe he suffered any harm. This argument also has no merit. Under Carson,
the focus is not on the subjective views of the oppressor or of the victim, but on
whether the conduct is objectively abusive. Any reasonable observer would
conclude that the conduct was so abusive that it constitutes maltreatment in violation
of Article 93.
Specification 4
Specification 4 of Charge III alleges that appellant “at or near Baghdad
Central Correctional Facility, Abu Ghraib, Iraq, on or about 8 November 2003 did
maltreat a detainee, a person subject to her orders, by writing the word ‘rapeist [sic]’
on the detainee’s leg who was then made to pose naked with other detainees.”
Appellant admitted in her sworn statement that she wrote the word on the detainee.
But she contends that this act does not constitute maltreatment.
Appellant argues that it was not unusual to write words and figures on the
bodies of detainees. Testimony established that the MPs at the prison sometimes
used markers to write prisoners’ cell numbers on their arms. In at least one instance,
the MPs also wrote the word “knife” on the hand of a detainee who had been caught
with a knife. Appellant further argues that the detainee upon whom she wrote the
word was in fact a suspected rapist. She points out that there is no evidence that this
detainee knew what was written on him, objected to it, or suffered any harm from it.
We disagree. Again, under Carson, it is the objective perspective of a
reasonable person, rather than the subjective reaction of the victim, that determines
whether maltreatment has occurred. From an objective perspective, appellant’s
action constituted maltreatment. Staff Sergeant IF testified that guards did not write
the names of crimes on detainees. No evidence showed that guards wrote on parts of
the body observable only when the detainee was naked. Writing the word on the
detainee could serve no purpose other than to humiliate him for the sake of
amusement. Specialist JS confirmed this conclusion. He testified that during the
12
HARMAN – ARMY 20050597
incident, appellant was “kind of happy, like it was a joke.” For these reasons, we
conclude that the evidence was legally and factually sufficient.
IV. Abuse of Discretion in Denying a Challenge for Cause
During individual voir dire, a member of the panel, Command Sergeant Major
(CSM) LP, informed the parties that she had been an alternate member for a panel
that heard the court-martial of a companion case. Command Sergeant Major LP,
however, did not act in that case and could not recall the accused’s name. She also
revealed that she had seen some news stories pertaining to the incidents at Abu
Ghraib. She remembered seeing pictures of detainees stacked in a pyramid and of a
detainee standing on a box with wires attached to him. She recalled, not entirely
accurately, that there had been a “mistrial” in the case of a co-accused for which she
was an alternate panel-member, that the reason for this “mistrial” was that “the
judge decided that the there was evidence presented that [the co-accused] may have
been innocent,” and that another co-accused received a sentence of “11 years.” In
response to questions, CSM LP said that she would decide this case based solely on
what she heard at trial and that she would disregard anything that may have
happened in another case.
Appellant challenged CSM LP for cause. The record contains some ambiguity
as to whether appellant based the challenge on grounds of actual bias or instead on
grounds of implied bias. The military judge considered CSM LP’s knowledge of the
sentence of an accused in a companion case but recognized that this information was
likely to come into evidence during trial (as it ultimately did). The military judge
also considered CSM LP’s belief that a mistrial had been ordered for another
accused, but questioned how this information would be prejudicial to appellant. The
military judge then rejected the challenge. In taking this action, the military judge
did not address implied bias. Appellant later used her peremptory challenge to
excuse CSM LP. 2
2
To preserve the challenge for appeal, appellant’s counsel declared that, if the
military judge had excused CSM LP for cause, appellant would have used her
peremptory challenge on another panel member, Sergeant Major (SGM) BH. At the
time of trial, an accused could preserve an objection to the denial of a challenge for
cause in this manner. See United States v. Eby, 44 M.J. 425, 427 (C.A.A.F. 1996).
The Rules for Courts-Martial, as amended on 18 October 2005, no longer authorize
this method of preserving challenges. See R.C.M. 912(f)(4) (“When a challenge for
cause has been denied the successful use of a peremptory challenge by either party,
excusing the challenged member from further participation in the court-martial, shall
preclude further consideration of the challenge of that excused member upon later
review.”). Because we conclude that the challenge for cause has no merit, we do not
address the question of how the amendment affects pending cases.
13
HARMAN – ARMY 20050597
Appellant now contends that the military judged erred in denying the
challenge for cause of CSM LP. On appeal, both parties have treated the challenge
as one for implied bias. They agree on the applicable rules and standard of review.
“[T]he test for implied bias is objective, and asks whether, in the eyes of the public,
the challenged member’s circumstances do injury to the ‘perception of appearance of
fairness in the military justice system.’ ” United States v. Terry, 64 M.J. 295, 302
(C.A.A.F. 2007) (quoting United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F.
2006)). “Issues of implied bias are reviewed under a standard less deferential than
abuse of discretion but more deferential than de novo.” United States v. Strand, 59
M.J. 455, 458 (C.A.A.F. 2004). “A military judge who addresses the concept of
[implied bias] on the record is entitled to greater deference than one who does not.
However, this does not suggest that the military judge [who does not address implied
bias] is entitled to no deference.” United States v. Hollings, 65 M.J. 116, 119
(C.A.A.F. 2007).
Appellant argues that the military judge treated CSM LP’s knowledge of
outcomes in the related cases as essentially inconsequential. She asserts that a
member of the public, however, would consider CSM LP’s participation in the court
martial unfair because she would “carry her knowledge of the outcome of prior cases
into the deliberation room” and that there was too great a risk that, despite saying
that she could set this knowledge aside, she would not be able to do so. In addition,
according to appellant, a member of the public might conclude that CSM LP’s senior
rank and knowledge would influence other members, resulting in an unfair trial.
We recognize that, “[i]n close cases military judges are enjoined to liberally
grant challenges for cause.” United States v. Clay, 64 M.J. 274, 277 (C.A.A.F.
2007). But we do not consider this a close case. CSM LP’s minimal knowledge of
companion cases, vaguely remembered from news reports, was not cause for
excusing her. In United States v. New, 50 M.J. 729, 734 (Army Ct. Crim. App.
1999), aff’d 55 MJ. 95, 98 n.1 (C.A.A.F. 2001), a soldier disobeyed orders to wear
United Nations insignia on his uniform. His act of protest engendered widespread
media stories. Id. Appellant challenged the presence of a member of his panel on
grounds of actual and implied bias in part because the member “had read numerous
news articles concerning appellant’s case.” Id. at 746. On appeal, we found no
implied or actual bias, concluding that the member’s “connections to the matters
challenged by appellant were professional rather than personal and were not atypical
of an officer in his position.” Id. at 747. 3 We reach the same conclusion here. A
member of the public would not believe that a senior non-commissioned officer, like
CSM LP, who said she could be objective, would in fact be biased or would serve
3
Our superior court affirmed our decision, but did not reach the issue whether the
member’s reading the newspaper was cause for excusing him. See New, 55 MJ. at 98
n.1.
14
HARMAN – ARMY 20050597
unfairly merely because she had seen or heard news stories about matters relating to
appellant’s case.
In addition, no per se rule bars members who have connections to companion
cases. See United States v. Ferguson, 27 M.J. 660, 661 n.3 (N.M.C.M.R. 1988)
(summarily rejecting an argument that a military judge erred by failing to grant a
challenge for cause of an officer who previously was a member in a companion
case). In this case, although CSM LP had been assigned to serve as an alternate on a
companion case, she did not in fact serve on the case. Indeed, she could not even
remember the name of the accused in that case. Further, at oral argument, counsel
for appellant acknowledged that the military judge properly inquired into the
specific knowledge possessed by CSM LP and how possession of that knowledge
might or might not be prejudicial to appellant. As set forth above, the military judge
recognized that information about the sentence in another case was likely to come
into evidence in any event and that information regarding the mistrial of another
accused was, if anything, helpful to appellant. This thorough inquiry showed efforts
to ensure the fairness of the trial. A member of the public would conclude that
CSM LP could be a fair and impartial court member.
VI. Conclusion
For reasons addressed in section II above, we amend the Specification of
Charge II as follows:
In that Specialist Sabrina D. Harman, U.S. Army, who knew of her
duties at or near Baghdad Central Correctional Facility, Abu Ghraib,
Iraq, from on or about 4 November 2003 to about 1 December 2003,
was derelict in the performance of those duties in that she willfully
failed to protect Iraqi detainees from abuse, cruelty and maltreatment,
as it was her duty to do so.
The findings of guilty of the Specification of Charge II and Charge II, as
amended, are affirmed. The remaining findings of guilty are affirmed. Reassessing
the sentence on the basis of the error noted, the entire record, and applying the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v.
Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker
in his concurring opinion, we affirm the sentence.
15
HARMAN – ARMY 20050597
Senior Judge GALLUP and Judge CHIARELLA concur.
FOR
FORTHE
THE COURT:
COURT:
MALCOLMH.H.SQUIRES,
MALCOM SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
16