The Gaskins case has caused a great deal of hate and discontent.  In the aftermath of the court-martial, a defense exhibit compiling a number of the accused’s accolades was lost.  ACCA, which considered the case en banc, ordered the record remanded to the trial level to attempt to reconstruct the missnig exhibit.  United States v. Gaskins, 69 M.J. 569 (Army Ct. Crim. App. 2010) (en banc).  Sitting on one of her last cases as an ACCA judge, Judge Ham the Great, joined by Judge Gifford, went medieval on the majority, as discussed by the No Man here.  Chief Judge Tozzi, joined by Judge Sims, agreed with Judge Ham the Great’s reasoning but wrote separately to say, in essence, “June, I think you were a little hard on the Beaver.”

In the wake of ACCA’s decision, Army DAD sought and obtained an extraordinary writ from CAAF calling off the attempt to reconstruct the exhibit.  Gaskins v. Hoffman, __ M.J. __, Misc. No. 11-8004/AR (C.A.A.F. Dec. 9, 2010) (summary disposition).  But rather than lowering the sentence to the jurisdictional maximum for a court-martial without a verbatim record — as suggested by Judge Ham the Great in her original dissent– a majority of ACCA today authorized a rehearing on the sentence in this unpublished en banc decisionUnited States v. Gaskins, No. ARMY 20080132 (A. Ct. Crim. App. Feb. 10, 2011) (en banc).  Judge Hoffman wrote for the majority, joined by five other ACCA judges.  Judge Sims, joined by Chief Judge Tozzi, disagreed, advocating instead the remedy that Judge Ham the Great had proposed.  Judge Gifford also dissented, writing separately to reiterate the now departed Judge Ham the Great’s rationale.

I suspect that this case may pay another visit to 450 E Street before it returns to Vicenza, Italy.

3 Responses to “ACCA authorizes a new sentencing hearing in Gaskins”

  1. John O'Connor says:

    If the case goes back to 450 E Street before ti goes back to the CA, would that have to be by writ?

  2. Bill C says:

    JO’C: That’s the plan.

  3. Stewie says:

    I understand that, like the scorpion in the scorpion and frog story, “it’s in their nature” but why is ACCA trying so hard to save this case. I get it, bad guy, did bad things. But the reality is he will still be kicked out (chapter) and he will be a registered sex offender for the rest of his life, and while no doubt he won’t serve the majority of his sentence, he’s already served three years so it is not like he’s walking away with a slap on the wrist either.

    This just feels like a case where the law is taking a back seat in the minds of ACCA to the severity of the crime.