Here is a link to ACCA’s en banc opinion in United States v. Gaskins, No. 2008012 (A. Ct. Crim. App. Aug. 27, 2010).  As a friend o’ CAAFlog who sent the opinion our way pointed out, Judge Ham (in a 23-page dissent) has some interesting comments for her fellow judges in the majority on the case.  The majority finds omission of a defense sentencing exhibit, called the “Good Soldier Book” throughout the opinion, warrants a DuBay hearing to determine if the omission of the Gold Soldier Book was substantial such that the limits on the potential sentence in Art. 19, UCMJ and RCM 1103(f) are implicated.

Judge Ham’s dissent is well written, but rather strongly worded compared to your run-of-the-mill CCA dissent–so strong that ACCA Chief Judge Tozzi joins the dissent but writes separately to note disagreement with some of the stronger language by Judge Ham.  Here is possibly the best portion of the dissent, and the portion with which Chief Judge Tozzi did not agree:

The case is now before us and I believe we should decide it.  Applying the law as set forth in the UCMJ and the Rules for Courts-Martial, I would affirm only so much of the sentence as provides for confinement for six months, forfeiture of $884 per month for six months, and reduction to E-1. I cannot agree that applying the law Congress promulgated and the President implemented is an “extreme remedy.” Congress determined the appropriate remedy for an incomplete record and we are bound by it. Whether we agree with the result is not the question; it is the appropriate result under the law.

The majority has instead decided to launch an appellate “rescue mission” to allow the government yet another opportunity to carry its burden and complete the record in this case. See United States v. Burris, 21 M.J. 140, 145 (C.M.A. 1985). Dubay hearings are not meant as a vehicle to administer appellate “CPR” to the government’s case. Nor should this court, in ordering a Dubay hearing, be in the business of instructing the government how it should best attempt to carry its burden. See United States v. Gaskins, ARMY 20080132 (Army Ct. Crim. App. 27 Aug. 2010) (order) (unpub.) (Appendix). Specifically, this court should not direct the government to search for specific documents in order to reconstruct the missing exhibit. Additionally, this court should not choose the questions it directs the Dubay judge to answer with an eye toward finding the facts it needs to affirm the sentence in the case, rather than simply finding the facts the majority asserts are necessary to decide the legal issue presented.

I wonder if the majority judges want their hail and farewell (or whatever the Army calls it) gifts back?

27 Responses to “Judge Ham Has A Few Parting Gifts for Her Friends”

  1. Dew_Process says:

    A rare moment in military appellate jurisprudence, to be sure!

  2. Anonymous says:

    The lineup of the judges is fascinating but somewhat understandable and predictable.

    Good for COL Ham for calling out ACCA for what it often does, appellate CPR of the government’s case, but can only imagine that the PCS to-do list was:

    1. outprocessing? check.
    2. packed? check.
    3. burned bridges? check.

  3. Anon says:

    Nice of her to affirm her position as a defense hack on her way out the door. Given what the courts have used DuBay hearings for over the years, sending the case back to reconstruct a missing exhibit is pretty benign.

  4. Mike "No Man" Navarre says:

    Given this summary, from Judge Ham’s dissent, of the trial level efforts to locate the Good Soldier Book, below, it would seem there isn’t much else to find, other than that appellant will have served at least another year of his 12-year sentence by the time this gets finished at ACCA again.

    “Appellant’s court-martial ended on 8 February 2008, and the convening authority took action on 8 October 2008. While preparing the record of trial, the government discovered that Defense Exhibit A was missing. As a result, post-trial documents reveal that the government conducted an exhaustive search for Defense Exhibit A in the months preceding the convening authority’s action. On 11 August 2008, the senior judge advocate on the ground concluded that “many efforts by both parties to track down this exhibit have not been met with success.”

  5. John O'Connor says:

    I don’t know anything about this judge, so my comment should not be read as agreeing (or even with disagreeing, really) with the onbervations of Anon 1534.

    I will say this, though. It’s a tricky thing when judges in the dissent go beyond disagreeing with the majority’s analysis and suggest bias in favor of one party or another. The thing is, when we agree with the dissent’s allegation of bias, we get all giddy and commend the dissent with telling it like it is, or speaking truth to power. When we disagree with the dissent’s suggestion of bias, we tend to think the dissent is undignified and inappropriate.

  6. soonergrunt says:

    Off topic–PFC Bradley Manning has selected a civilian Defense Counsel:

    The Army says former military attorney David Coombs, of Providence, R.I., will represent Pfc. Bradley Manning…Coombs is best known for defending Army Sgt. Hasan Akbar, charged in a deadly 2003 attack on fellow U.S. military members in Kuwait. Akbar is awaiting execution for murdering two officers.

  7. Michael K says:

    That didn’t read like burning bridges, it just looked like a difference of opinion, strongly worded. One might say, trying to fix an already broken bridge with a different set of tools. Dissents shake out the hot issues, and that’s a beat we can all dance to.

  8. A Defense Counsel says:

    So, what now for the DC at the DuBay? If the DC thinks in the client’s best interest to not help the government to comply, can (should) he sit there like a potted plant and refuse to play? I would at least be afraid that my attempts to “help” might unintentioanally merge what happened at trial with work product or confidential communications.

  9. Anonymous says:

    I wonder if Dave will recreate his “Wade Blasingame” persona in the defense of young PFC Manning.

  10. Anonymous says:

    Why the need for a Dubay over this? It’s an incomplete record so test for prejudice, etc. You find prejudice, give some relief.

  11. Anon says:

    To the editors of CAAFLog: Your website is sometimes pre-loading the reply box with information from another user. For example, I know who wrote the “A Defense Counsel” post because the “Leave a Reply” boxes were filled with that person’s email address (will not be published…).

  12. Mike "No Man" Navarre says:

    Anon 30 Aug at 1702–Email me offline at It is hard for me to replicate what you are talking about. But I’d hate to see the privacy of someone that made a good contribution anonymously lost due to some techno glitch.

  13. John O'Connor says:

    Yeah, it came up as

  14. anon says:

    After her two years on the bench the deplorable judgment of her brethren finally got to COL Ham. She just couldn’t take it any longer being the lone voice of the oppressed in the wilderness of justice. You may disagree with her wording, fine; but her point is correct. The bigger picture here is the CCAs – ACCA specifically – unwilling to give relief for what we in the talking head world regard as “legal technicalities.” Listen, its either the law or its not. Obviously the govt screwed up, why give them a second chance? Forget the legal arguments which are with COL Ham, but why practically should the Gov’t get a second chance???

  15. soonergrunt says:

    Yeah, it came up as

    That’s just wrong.
    Funny, but wrong.

  16. Anonymous says:

    Best retirement/departure dissent was by Villemez at NMCCA in Fischer (60 MJ 650): “Numerius, the governor of Narbonensis, was on trial before the Emperor [Julian], and contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar! If it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L.XVIII, c.1….For all these reasons and those discussed above, the questioned [**37] regulation must implode from the excess weight of its own illogicalness. While its intent might be admirable–saving the Government money–its effect is to impose an impermissible form of pretrial punishment or penalty on the appellant, in violation of Article 13, UCMJ. Thus, the appellant is entitled to appropriate relief, since the impressing of seaman fell out of favor in this country some time ago.”

  17. Anonymous says:

    You apparently overlook the inconvenient fact that “the law” says to obtain relief, an appellant is required to show a legal error, in addition to material prejudice. I seem to recall that somewhere in Article 59(a), UCMJ. But that seems to quietly avoided by ADC in most oral arguments.

  18. John O'Connor says:

    Good post, Anon 1010.

  19. Anonymous says:

    I think the point made by COL Ham is that all of the evidence you need to show a legal error has been shown, in fact, the court has said there was an error, the question now is prejudice.

    There is not likely to be something new at the DuBay hearing to help with that. So the court should have found yea or nay now, instead of having a completely unnecessary hearing.

  20. John O'Connor says:

    Changing course slightly, I wonder if the Government can/will call the accused or his counsel as witnesses in the Dubay hearing in an effort to establish what was in the Good Soldier Book and whether it can be recreated in any way.

    If I were the Government, I’d probably try that until somebody told me I couldn’t.

  21. Presley O'Bannon says:

    So you would compel an accused to testify against himself?

  22. John O'Connor says:


    I guess that’s the question. Is the Fifth Amendment implicated in a Dubay hearing where the accused has already been convicted of the offense, and the questions would not go toward guilt or innocence? Maybe, perhaps probably, but I’d sort that out very carefully in advance because, as someone noted above, the defense has no real incentive to particupate in this at all.

  23. Anonymous says:


    I like your style. This thing is already F’ed up, and the guy will probably get the 6 months, so why not push the envelope and create some new law on a different issue? Still, one’s state bar might have a problem with compelling an accused in a criminal case, and remember that the conviction is not final until appellate review is done…

  24. John O'Connor says:

    Having done what I exhort my associates to do, and actually gone to the text, I would say the Fifth Amendment is a pretty clear bar on calling the accused himself (“nor shall he be compelled in any criminal case to be witness against himself”). My assumption is that a Dubay hearing counts as a “criminal case.”

    I still think I would get it clear on the record that the accused intends to invoke that privilege instead of waiving it and describing the contents of the missing exhibit (to the extent he would have such knowledge) and I would probably call the defense lawyers or get a detailed proffer.

  25. John O'Connor says:

    Anon 1628:

    Trial counsel can’t comopel anything. It’s clearly inappropriate to call the accused in front of the members because of its prejudicial nature, but I see no problem with getting it on the record at a Dubay hearing whether the accused will invoke a privilege not to testify about the missing exhibit. I can’t see how a state bar would have the slightest problem with that. People waive rights all the time and there’s no harm in getting a refusal to so waive on the record.

  26. Anonymous says:


    Agreed that TC cannot compel the accused to do anything. My point was more to the appearance of impropriety that your suggestion entails. If the D is not going to participate (as I would agree he probably shouldn’t), I’d say that the record is going to reflect that pretty well. I don’t see the benefit for the G of making a big deal and calling Defense Counsel, potentially attempting to get the DC to do something that is not in their client’s best interest, and injecting a ton of error into the proceeding. TC is best served by fulfilling the DuBay order to the best of his/her ability. I am hard pressed to find how calling DC to testify, ostensibly to the detriment of their client without a showing of fraud is striking a “hard blow” as opposed to a “foul” one.

  27. Weirick says:


    Your analysis is not limited to dissenting opinions. All opinions are subject to the following binary evaluation:

    Opinion Weirick agrees with = rightly decided
    Opinion Weirick does not agree with < rightly decided