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in United States v. Wardadecided last week by the U.S. Court of Appeals for the Armed Forces, in an opinion by Judge Tia Johnson, joined by Chief Justice Kevin Olson and Justices John Sparks and Liam Hardy, the court reversed the defendant’s rape conviction:

Appellant and MB met on Facebook in 2012. After communicating through various platforms for a few years, they met in person for the first time in December 2015, when Appellant and his family traveled to MB’s home in Amman, Jordan, to ask her family for help. Permission to marry MB. They were married in the Sharia Court in Jordan on December 15, 2015. After that, MB remained in Jordan while the appellant returned to the United States.

In the spring of 2017, appellant and MB argued over the phone, and appellant verbally divorced her with talaq, the Islamic term meaning “divorce.” M.B. testified. That after three oral discussions, the divorce is final and cannot be annulled. The appellant’s brother, A.F., explained:

The way you enforce this divorce is verbally, so you just say, “I give you up.” It can be via text, over the phone, or in person, and if you do it three times, it’s a final divorce. After that, you can [sic] Those administrative papers, but once you say the word it becomes an actual divorce.

Appellant annulled the first divorce, and in May 2017, MB went to New York to obtain a green card. Later that summer, she moved to New York to live with appellant.

Over the next two months, the appellant announced two additional letters. A.F. testified. That when he spoke to M.B. After the third and final divorce in September 2017, MB told him that she wanted the citizenship and dowry she had been promised. A.F. witnessed that when he told her that he could deliver neither of these things, she replied: “You’ll see what I’ll do and you’ll regret it.”

In October 2017, MB informed civilian law enforcement that Appellant forced her to have sex on more than one occasion, including in August 2017, the incident at issue in this case. She requested a temporary protection order against him, and in February 2018, she obtained a long-term protection order. Their divorce was finalized in April 2018. MB’s green card expired in May 2019, but she remained in the United States. In March 2020, she took a job as an administrative assistant at a nonprofit organization that provides immigration services. By the time she testified in September 2020, she had been living in the United States for three years, where she worked and attended college, and made several trips to Jordan to visit her family.

The court concluded that the trial court erred in denying defendant access to MB’s immigration records; The court held that the records were “necessary to a fair trial”:

According to the defense, the requested immigration records could reveal one of two outcomes relevant to this case: either M.B. continued her residency status by claiming she was beaten or she did not. If she claimed abuse, the evidence would support her motive for fabrication because claiming that she was the victim of sexual assault would provide a means to continue her lawful residence in the United States without assistance from appellant after her divorce. If she did not claim abuse, the evidence would undermine the credibility of her sexual assault claims in this case, and the defense could cross-examine her based on her previous inconsistent statements. Moreover, if she had sought resident status for another reason, the evidence would undermine the credibility of her assertion that the only reason she immigrated to the United States was to be with her husband, when she was happy to remain in Jordan. In short, as the defense said, “[T]His evidence is of central importance because it is [MB]The motive for fabrication in this case. Her status as an immigrant is central [tenet] For the defense in this case…”

In response to the military judge’s suggestion that this evidence of the battered husband’s claim could be “severed[ ] In both directions, the defense responded by confessing, “[p]“Possibly,” but he asserts before this court that “this does not negate the importance of the evidence.” In other words, the defense theory was that the evidence in question would be exculpatory regardless of what it revealed, even if the evidence could also provide evidence The government made consistent and useful statements: The military judge made no conclusions about the facts and did not reach any conclusions—other than an erroneous conclusion That appellant failed to meet his burden of proving the existence of such records—undermining the defense’s theory that such evidence was exculpatory.

In this case, MP alleged that she was a victim of domestic violence while she was in the United States under a conditional green card. The government’s case was based almost entirely on its testimony: there were no eyewitnesses, no medical evidence, no law enforcement reports or testimony admissible into evidence, and no forensic evidence. The appellant asserted that she fabricated these allegations so that she could remain in the United States after he divorced her. During the court-martial, MB denied knowing that if she claimed abuse by her husband, she could remain in the United States. When the defense’s motion to coerce failed to provide even an acknowledgment of the existence of her immigration records, appellant had no reasonable means of verifying or refuting her testimony.

In such a case, where there is no concrete evidence to support the allegation of domestic violence by the complaining witness, the credibility of the complaining witness is of central importance. Therefore, the accused in such a case has a vital interest in being able to obtain evidence that can be used to cast doubt on the testimony of the complaining witness at trial, thus undermining her overall credibility.

We conclude that the defense demonstrated that the evidence regarding MB’s immigration status was of central importance to her credibility, which is the central issue in this case. By repeatedly denying that she knew she could allege her husband’s abuse and thus extend her green card, MP implicitly denied that she had done just that—while also preventing the defense from obtaining the records, thus frustrating effective cross-examination regarding her motive for fabricating the allegations.

Judge Gregory Maggs disagreed, saying that “the military judge [did not] Offense[] discretion in concluding that there is an “adequate alternative” to the evidence that immigration records may contain”; cf pp. 26-34 To this dissent, and pages 20-21 to the majority’s response.

Represented by William E. Cassara and Captain Tomentogues D. Armstrong, defendants.

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