
    No. 12-0693/AR.
    U.S. v. Bradley O. Temple.
   CCA 20090883. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that in discussing the sufficiency of the evidence as to the rape conviction, the Army Court of Criminal Appeals commented that “we are hesitant to substitute our judgment for that of the panel members who heard and saw the testimony of the witnesses. We are even less likely to do so where there is other evidence such as the appellant’s own incriminating statements, medical testimony, and scientific evidence which corroborates the victim’s testimony.” One might reasonably read the entire passage on evidentiary sufficiency and conclude that, taken as a whole, the reference to hesitating to substitute judgment for that of the members is nothing more than a recognition “that the trial court saw and heard the witnesses.” Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 966(c) (2006). However, one might also reasonably question whether the Army Court of Criminal Appeals clearly understood that it could not defer to the members but was obliged to give a new, fresh look at the testimony, particularly where there were conflicts in the testimony. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT FAILED IN FULFILLING ITS STATUTORY DUTY PURSUANT TO ARTICLE 66, UNIFORM CODE OF MILITARY JUSTICE, WHEN IT FAILED TO INDEPENDENTLY WEIGH THE EVIDENCE AS REQUIRED BY THAT ARTICLE.

The record is returned to the Judge Advocate General of the Army for remand to the Army Court of Criminal Appeals to clarify whether a proper Article 66(c), UCMJ, review was conducted, and if not, to conduct such further review as may be necessary. See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]  