U.S. v. Harman, 68 M.J. 325

Core Criminal Law Subjects: Crimes: Article 81 - Conspiracy Pre-2019 offenses

1. under Article 81, UCMJ, conspiracy requires: (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; conspiracy need not be in any particular form or manifested in any formal words; rather, it is sufficient if the agreement is merely a mutual understanding among the parties; the existence of a conspiracy may be established by circumstantial evidence, including reasonable inferences derived from the conduct of the parties themselves
2. appellant’s conduct was legally sufficient to support her conspiracy conviction where she actively participated in the abuse of prisoners and encouraged others to do so while she was serving as a guard in an Iraqi prison; appellant freely chose to participate in the abuse and, in fact, voluntarily left to retrieve a camera so she could return to join and photograph the abuse; a picture of appellant that showed her smiling, making a thumbs up hand signal in front of a nude pyramid of prisoners, showed approval and encouragement to her co-conspirators as they maltreated the prisoners; an inference that she was joining their purpose was justified; appellant’s direct involvement and obvious approbation, combined with her jokes and failure to stop or report the abuse, further supported a reasonable inference of conspiracy derived from the conduct of the parties themselves

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. willful dereliction of duty requires: (1) 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
2. appellant’s conduct was legally sufficient to support her conviction of dereliction of duty for failing to perform her duty to protect Iraqi detainees from abuse, cruelty, and maltreatment while she was serving as a guard in an Iraqi prison, where her participation went beyond mere acquiescence or negligent dereliction of duty; she actively and willingly participated in attaching wires to a detainee, writing “rapeist” on a detainee’s naked thigh, taking photos, and encouraging others’ abuse; although appellant had received training in the care, custody, and control of detainees as well as in the basic requirements of the Geneva Conventions regarding their treatment, she did not require specialized training to know that her actions were wrong, as evidenced by her own admissions as well as her colleagues’ decisions to report the abuses

Core Criminal Law Subjects: Crimes: Article 93 - Cruelty and Maltreatment Pre-2019 offenses

1. maltreatment requires: (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; there is no need to show actual harm; rather, it is only necessary to show, as measured from an objective viewpoint in light of the totality of the circumstances, that the accused’s action reasonably could have caused physical or mental harm or suffering
2. appellant’s conduct was legally sufficient to support her conviction of four specifications of maltreatment for photographing, placing electrodes on, and writing “rapeist” on detainees while serving as a guard in an Iraqi prison, where the objective standard of harm was met for all four specifications; no reasonable detainee would want to be abused and, more importantly here, would wish his abusers to record this pointless, humiliating conduct; at least one detainee was aware he was being photographed at the time of the incidents, and it was reasonable for the military judge to find that one detainee would have feared electrocution when guards explicitly told him he would be electrocuted if he fell off the box, irrespective of whether the wires were actually electrified; it was similarly reasonable that the military judge concluded another detainee would suffer from having “rapeist” capriciously written on his leg while lying partially naked, hooded, and bound

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF reviews questions of legal sufficiency de novo as a matter of law

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews questions of legal sufficiency de novo as a matter of law
2. the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt