The writ that CAAF issued on Thursday in Gaskins v. Hoffman, __ M.J. ___, Misc. No. 11-8004/AR (C.A.A.F.  Dec. 9, 2010) (summary disposition), appears to be the first time that CAAF granted actual relief on a petition for extraordinary relief or writ appeal (as opposed to ordering a remand, as in Denedo), since 2006.

Gaskins was an en banc ACCA decision that found the record to be incomplete due to its failure to include a defense exhibit.  United States v. Gaskins, 69 M.J. 569 (A. Ct. Crim. App. 2010) (en banc).  (The No Man discussed the decision here.)   The majority ordered the case remanded for a DuBay hearing “to determine if an omission is substantial, to determine if reconstruction is possible, and to facilitate any reconstruction.”  Controversially, the majority stated, “Defense counsel should provide input in such a reconstruction.”  Judge Ham the Great dissented, arguing that a remand to try to reconstruct the exhibit would be a waste of time.  She also objected to expecting the defense to participate in the missing exhibit’s reconstruction.  And she accused the majority of launching an “appellate ‘rescue mission.’”  Judge Ham the Great wrote an extensive analysis of the omitted exhibit, its significance, and the law governing substantially verbatim transcripts.  She concluded that the appropriate remedy was to disapprove the adjudged and approved DD and knock the confinement down from 12 years to 6 months.  Judge Gifford joined in her dissent.  Chief Judge Tozzi also dissented, but wrote separately to disassociate himself from Judge Ham the Great’s “appellate rescue mission” characterization.  Judge Sims joined Chief Judge Tozzi.

On Thursday, CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.  The case will be returned to ACCA to determine the appropriate outcome.  Judge Ham the Great will no longer be there. ACCA will now have to decide without her further input whether the omission was substantial.  If so, it appears that ACCA will be left with no choice but to disapprove the DD and knock confinement down from 12 years to 6 months.

15 Responses to “Some thoughts about the Gaskins writ”

  1. sg says:

    Umm, hasn’t the accused already spent the whole 12 months in confinement? It’s great for him that his discharge will (most likely) be changed from a Dishonorable to something better, but who does he see about the lost six months of his life?
    I understand that the military dockets move substantially faster than the civilian ones, but in the case that his confinement gets reduced, does he get paid at his previous rank for that time that he served that was vacated?
    I ask because it seems to me that a year in prison is a year in prison and might only suck slightly less in hindsight in a few years, knowing that he didn’t deserve the whole year.

  2. Tami says:

    SG,

    The sentence was 12 years, not 12 months. Assuming his sentence is reduced to 6 months, he’ll get back pay for the “extra” time spent in confinement. But I wouldn’t be surprised if ACCA ordered a rehearing on sentence.

  3. Gordon Smith says:

    I know this is kind of off-topic, so I hope members will overlook the intrusion. Does anyone here know what ”JAG 29 Juris Corpus section 46” could refer to? I encountered this reference on a forum which discusses war crimes. Is it some sort of compilation of JAG opinions?

  4. sg says:

    Thanks for the clarification, Tammi!

  5. John O'Connor says:

    I also think it’s fair to distinguish Gaskins from most writ petitions. This sought intervention with respect to a decision by a CCA. Given the jurisdictional limits on Article 66 review of court-martial cases, I think it’s an easier case jurisdictionally to issue a writ with respect to a CCA decision than it for a CCA or CAAF is with respect to events taking place at the trial level.

  6. Anonymous says:

    Just a moment. If DE A is so important, even if we do not know what it is, why are we talking about doing anything other than dismissing the charges? The G blew it by losing DE A and a retrial would be double jeopardy. Acknowledging that six months confinement and a BCD is ok for losing the exhibit seems to say we are just goiing to punish the G even though we still think he is guilty. This analysis feeds the impression that the CCAs are just JV jurists.

  7. A Defense Counsel says:

    Isn’t ACCA stuck with no choice but to approve no confinement in excess of 12 months? What would be the point of a sentence rehearing?

  8. Snuffy says:

    A sentence rehearing would penalize the accused for the govt’s error. The exibit contained many original documents- no copies exist- how could he duplicate? I guess the convening authority could do a PTA for a good sentence limitation such that the accused could agree to proceed on sentencing absent the lost documents. But, I am not sure ACCA could so order. Bottom line- the record is incomplete and the documents missing are substantial- ACCA has no real choice. A non-verbatim record gets no more than 12 and no kick.

  9. W says:

    This sucks. “The court-martial panel found appellant guilty of carnal knowledge and indecent acts with the 12-year-old daughter of a fellow soldier and indecent assault on another female soldier.”

    Now he walks because his “Good Soldier Book” was lost?

    Shame.

  10. Anon says:

    Be careful of the mischaracterizations of the law. It’s not “12 and no kick”, it’s not “six months and a BCD”. The correct provision for verbatim records of trial is found in RCM 1103(b)(2)(B). It’s any sentence exceeding six months, forfeitures greater than two-thirds pay per month, forfeitures for more than six months, or any punishment that can be adjudged by a special, plus a BCD. So, if Gaskins gets a “nonverbatim” punishment, he gets six months, no BCD.

    Also, be careful in assuming that this was completely the government’s fault. The DC had the exhibit on their counsel table after trial for “copies” of original photos and the like. Did not safekeep the document. Then pointed fingers at the government.

  11. W says:

    Would not be the first time that has happened – at least in my own experience. Lesson to TC – if DC hasn’t made copies of the exhibit by the time it is entered as evidence – too freaking bad. The copies will be attached to the ROT.

  12. Bill C says:

    Anon 1358: As Gaskins’ counsel, I can tell you that the government’s assertion that the DC was the last one to have control over DE A is simply wrong, nor would it make any sense. DC marked the exhibit and left it with the court reporter, as is standard. They did not point fingers at the government. The government lost it, plain and simple. And every attempt they made to find or reconstruct it came up short.
    W: It should be some consolation that the evidence against SSG Gaskins is extremely weak. We are still dealing with that issue at ACCA.

  13. Anonymous says:

    Be careful of the mischaracterizations of the law.It’s not “12 and no kick”, it’s not “six months and a BCD”.The correct provision for verbatim records of trial is found in RCM 1103(b)(2)(B).It’s any sentence exceeding six months, forfeitures greater than two-thirds pay per month, forfeitures for more than six months, or any punishment that can be adjudged by a special, plus a BCD.So, if Gaskins gets a “nonverbatim” punishment, he gets six months, no BCD.Also, be careful in assuming that this was completely the government’s fault.The DC had the exhibit on their counsel table after trial for “copies” of original photos and the like.Did not safekeep the document.Then pointed fingers at the government.

    Anon, I assume if there were ANY evidence that the defense was responsible for effectively swiping the original from the government, this case would have never gone to CAAF.

  14. W says:

    Bill C: It isn’t. The evidence was apparently strong enough to convince a panel BRD. That is not what I would consider an extremely weak case.

    Like I said – this sucks.

  15. gg says:

    The soldier has spent 3 years in prison, not 12 months. And if you read the trial record in detail you will find conviction on no physical evidence presented and both victim’s stories changed as many as three times with perjury committed as well.