Major seeks new sentencing for child abuse, says fraternization reprimand unfair
By NANCY MONTGOMERY | STARS AND STRIPES Published: November 29, 2017
After Maj. David Jerkins was convicted at court-martial for severely beating his toddler stepson with a belt, two Army colonels and two major generals testified to Jerkins’ sterling military qualities.
The senior officers described Jerkins as a fine leader, “bright,” “passionate,” and a man they’d be pleased to serve with again. The jury at the 2014 court-martial in Fort Hood, Texas, later sentenced him to dismissal from the service and six months in jail.
This week, Jerkins’ lawyers asked the military’s highest court to overturn his sentence. They argued that critical remarks by a third general about Jerkins’ military character — in a reprimand for fraternization — improperly influenced the jury.
The General Officer Memorandum of Reprimand issued shortly before Jerkins’ trial reprimanded him for his premarital relationship with the toddler’s mother. She was a junior enlisted woman when Jerkins married her in March 2011, according to court documents, and was separated from the Army nine months later.
“You have failed to live up to the Army values and you have betrayed our trust,” Maj. Gen. Warren Phipps, commander of 1st Army Division West, said in the reprimand. “I have serious doubts regarding your ability for continued service in the United States Army ... your actions have brought discredit upon you, your unit, and the United States Army.”
The reprimand prejudiced the jury against Jerkins and should not have been allowed as evidence for numerous reasons, according to defense briefs filed in the case. The reprimand wasn’t final — Jerkins had not submitted his response — and so wasn’t admissible, they argued.
It was also inaccurate, they argued, because it said that Jerkins’ wife left the Army, according to discharge papers, because of “pregnancy or childbirth.”
Since she gave birth two months later, 11 months after their marriage, the reprimand “references conduct that occurred within the sanctity of marriage,” the defense brief said.
The defense also argued that allowing a reprimand issued two weeks before trial and shortly before jury sentence deliberations was akin to bringing “the commander into the deliberation room.”
“Such a practice invades the province of the sentencing authority by raising the specter of command influence,” they argued.
At his 2014 court-martial, Jerkins’ defense was that the beating, which left injuries he and his wife initially explained to authorities as the result of a fall or “dog bites,” was non-criminal parental discipline.
The assault on the child was first reported by neighbors who’d noticed welts and cuts on the 3-year-old, asked him what had happened and were told that his stepfather had beaten him with a belt.
The Army’s appellate lawyers said in their briefs that the reprimand was proper evidence as a rebuttal to the senior officers who had praised Jerkins.
They also argued that the boy’s injuries, displayed in photographs at the trial, along with testimony — the boy’s father testified about the psychological impacts the beating had on his son — and Jerkins’ poor rating in his most recent evaluation were the reasons for Jerkins’ sentence.
Prosecutors had asked for a 10-month jail sentence, 14 months less than the maximum punishment allowed.
Even if the appellate judges were to find that the trial judge erred by admitting the reprimand as evidence, it didn’t matter, the Army argued, because the outcome would have been the same.
“Any error was harmless,” the lawyers said. “(T)here was no significant impact on the sentence ... for beating a toddler with a belt to the point of causing substantial, visible injuries.”
The Court of Appeals for the Armed Forces takes on average about four months before handing down a decision.