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?