Second Lieutenant Paul Leonhardt was found guilty of a single count of sexual assault in a December, 2015 court-martial convened at Eielson Air Force Base. Over his consistent claims of innocence, Leonhardt was sentenced to five months in prison and dismissed from the Air Force. Dismissal makes former airmen felons for all intents and purposes in many states, suspending key civil liberties for life.
In an opinion published August 16th, the Air Force Court of Criminal Appeals (AFCCA) held that the trial judge, Vance Spath, had abused his discretion in excluding key evidence at trial – evidence Leonhardt argued was not only relevant, but constitutionally required to preserve his right to confront witnesses against him.
The court set aside the original findings and sentence, essentially vacating Leonhardt’s conviction. The Air Force has until mid-September to either request reconsideration, ask for a retrial, or reinstate Leonhardt to active duty with back pay.
The ruling is just the latest in a series of setbacks for the Air Force Trial Judiciary, many implicating judges applying and misapplying the law in determining the proper uses of evidence in sexual misconduct cases. The Leonhardt case is a window into how lop-sided these cases can be while still purporting to follow the law.
Charges in the case arose from an incident involving Leonhardt and alleged victim “MG” while both were cadets at the US Air Force Academy (USAFA). By August of 2012, the two squadron mates had been seeing one another socially and been on dates, but had not engaged in sexual activity. On the night in question, MG agreed to spend the night with Leonhardt at a private off-base residence. She packed a bag and left USAFA with him. The two had dinner and then hung out at a hookah bar before going to the house late at night. Neither had been drinking.
The two slept in the same bed in a private room. Twice, they engaged in sexual intercourse – once before going to sleep and again the next morning. They then returned to USAFA together and went back to school. No alarm bells were raised. No reports were made. Nothing untoward or concerning was reported by others in the home that night. In fact, the only relevant testimony from the home that night was that moaning sounds consistent with consensual sex were audible from the room where the two stayed.
More than two years later, MG reported that Leonhardt had sexually assaulted her that night. She claimed neither of the instances of intercourse were consensual and that Leonhardt had also put his hands on her breasts without permission. There were no witnesses and no physical evidence. MG had not made any contemporaneous complaints to friends, colleagues, or confidants, much less authorities. Leonhardt vehemently and consistently denied the charges.
Despite these and other weaknesses in the case, the government proceeded to charge and try Leonhardt. His conviction was the result of a clearly erroneous ruling by the trial judge concerning evidence the defense sought to admit under rule 412 of the Military Rules of Evidence (MRE).
MRE 412 provides that evidence of other sexual behaviour by a complaining victim of sexual assault is generally to be excluded. When a victim says s/he was assaulted, it is typically impermissible to put the victim’s sexual history on display for the jury, which would risk unduly biasing the jury and re-victimization.
However, there are exceptions to MRE 412. One such exception provides that evidence of the purported victim’s other sexual behaviour is admissible if excluding it would violate the constitutional rights of the accused. This includes the accused’s Sixth Amendment right to confront, cross-examine, and impeach witnesses against him.
Leonhardt’s lawyers sought to present evidence that MG and Leonhardt had continued their relationship after the night in question, and had engaged in consensual sexual intercourse “at least two times” in Leonhardt’s dorm room after the alleged incident. They argued that this tended to reveal something important and MG’s state of mind – that she did not believe she’d been sexually assaulted as claimed. Leonhardt claimed there were witnesses supporting his account.
The sought testimony was part of an alternative defense theory: that MG’s boyfriend after her relationship with Leonhardt – an Air Force officer who had been in the same squadron and remained her boyfriend at the time of trial – had heard about her sexual exploits with Leonhardt and become angry about it. This could have threatened their relationship, and thus could have supplied MG with a motive to disown a consensual sexual relationship with Leonhardt.
Given MG was the only witness against Leonhardt, he was entitled to confront her and explore her state of mind with respect to the claim of sexual assault. This is basic constitutional law. As AFCCA found, Judge Spath’s decision to exclude the evidence of a continuing sexual relationship robbed Leonhardt of this fundamental right to examine her state of mind, thereby infringing on his constitutionally guaranteed due process.
Having decided Leonhardt’s rights had been violated at trial, the court then had to determine whether or not the violation had been harmless. It’s possible in some cases that a court can make a mistake that doesn’t materially implicate the trial outcome, so a constitutional infringement doesn’t always result in reversal.
In this case, AFCCA was obligated to reverse the findings unless it could determine that Spath’s error was harmless beyond a reasonable doubt. To make a long story short, the court found a reasonable possibility that the error contributed to Leonhardt’s conviction. Here’s a sample of the court’s analysis:
The real question, given what we can now see about this case, is why, on the evidence available, the government would proceed in the first place. There was no expectation of conviction on the facts — at least not without an egregious error of law. Beyond the obvious flaws in judicial performance, there is a serious concern about why prosecutors are insistent on trying cases with such obvious and fundamental evidentiary flaws. The duty of a prosecutor is to pursue justice … not to pursue convictions.
One explanation is that prosecutors are moved by victims’ insistences in spite of the evidence. A more realistic explanation is that they are propelled by political pressure to believe every complaining witness no matter the evidence. This is essentially the approach judge advocates are being ordered to adopt in the current political environment.
The ultimate outcome in this case is a mixed bag. We should be heartened by AFCCA’s outcome but disturbed that it was necessary. We should be encouraged that a wrongly accused officer stands to regain his reputation, but mortified by the damage the case will have done to his life, family, and future. He served time without a fair trial and lost a promising career, his young life forever disrupted so the Air Force could claim his pelt as a political trophy.
Who does Paul Leonhardt see about that?