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.