Appeals court overturns sentence of soldier convicted of beating toddler stepson with belt
By NANCY MONTGOMERY | STARS AND STRIPES Published: February 12, 2018
The military’s highest court overturned the dismissal of an Army major convicted of beating his toddler stepson, narrowly deciding that a general’s reprimand letter improperly influenced the jury.
Maj. David Jerkins was convicted at court-martial in 2014 of assaulting the 3-year-old with a belt. He was a 41-year-old father of nine who’d served 19 years, mostly in the reserves, and had won a leadership award in 2007.
Before he was sentenced to six months in jail and dismissal at Fort Hood, Texas, two Army colonels and two major generals testified to his sterling military qualities and said they’d be proud to continue to serve with him.
Prosecutors seeking to rebut that “good character” evidence were allowed by the judge to show the jury Jerkins’ recently-issued reprimand letter.
Issued by the commander of 1st Army Division West, the reprimand was for Jerkins’ fraternization with an enlisted soldier. Jerkins and the soldier, the toddler’s mother, were married in 2011. Shortly afterwards she became pregnant and left the service.
The reprimand stated that Jerkins had discredited himself and the Army and that it was doubtful he was fit for further service.
The Court of Appeals for the Armed Forces ruled that the reprimand was not allowable evidence: it was issued after a fraternization charge for the same conduct was dropped days before Jerkins’ arraignment, and it hadn’t been finalized because Jerkins hadn’t yet responded to it.
As a result, “the “commander’s opinion that (Jerkins) was unfit for continued military service—essentially, a recommendation that he be dismissed from the service—invaded the province of the members of the court-martial,” according to the opinion issued Thursday.
The justices split three to two deciding whether the judge’s error was “harmless” or instead made a difference in the jury’s sentencing decision.
The two dissenting justices wrote in their opinion that the reprimand was less influential than other copious evidence, including Jerkins’ poor evaluation in which a senior rater ranked him 58th out of 58 majors.
They also wrote that the severity of Jerkins’ crime overcame possible prejudice from the reprimand, as did photographs of the injured toddler depicting “bruising, welts, and abrasions that covered practically the child’s entire body.” Jerkins had initially told authorities that the boy’s injuries were a result of an accidental fall or a dog bite, the dissenting judges noted.
“It is not difficult to fathom that the panel concluded that the severity of the beating and Appellant’s mendacity about its circumstances — standing alone — warranted the sentence imposed on Appellant,” the dissenting justices wrote.
The case will now go back to the Army Court of Criminal Appeals. That court can reassess the sentence or order a new sentencing hearing.