CAAF will hear oral argument in United States v. Gaskins, No. 13-0016/AR, on Tuesday, February 19, 2013. The court granted review of two issues:

I. Whether the Government’s loss of a sentencing exhibit rendered the record of trial incomplete under Article 54, UCMJ, resulting in a jurisdictional limitation on the sentence to one no greater than that which could be approved for a non-verbatim record.

II. Whether Appellant waived the failure to plead the terminal element of the Article 134 offenses by his failure to raise that issue at the sentence rehearing, and if not, whether those charges should be dismissed because the Government failed to plead the terminal element.

Article 54, UCMJ, requires preparation of “a complete record of the proceedings and testimony,” and Rule for Courts-Martial 1103 provides that when a verbatim transcript cannot be prepared, due to loss of the recording, notes, or other reason, the convening authority may approve no sentence greater than confinement for six months, forfeiture of two-thirds pay per month for six months, and reduction to E-1 (a “non-verbatim sentence”); or the convening authority may direct a rehearing (i.e., redo the entire trial) as to any offense of which the accused was found guilty.

Army Staff Sergeant Gaskins was convicted, in February, 2008, by a general court-martial composed of members with enlisted representation, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, UCMJ, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge. But Defense Exhibit A – the Appellant’s “good soldier book” – went missing and wasn’t included in the record of trial. That omission began an appellate odyssey that continues next week at CAAF, a half-decade later.

The “good soldier book” was a “completely filled 3-inch binder, consisting of Appellant’s Marine Corps service record book, numerous awards from his time in both the Marines and the Army, and photographs and other documentary evidence sufficient to merit consideration by the panel in mitigation.” Appellant’s Br. at 10. It was presented to the members during sentencing and then vanished, and there were (apparently) no copies, tables of contents, summaries of the contents, or other means to adequately recreate the Exhibit.

But despite the language of RCM 1103, the Convening Authority approved the adjudged sentence. On direct review, a three-judge panel of the Army CCA heard oral argument, but then the entire court issued a published opinion ordering a DuBay hearing “to determine whether substantial matters were omitted from the record and, if so, whether it is incomplete under Article 54, UCMJ.” United States v. Gaskins, 69 M.J. 569, 570 (A.Ct.Crim.App. 2010) (en banc) (Gaskins I). Curiously, all three judges who participated in the oral argument dissented from the court’s opinion in the case. One of them, Judge Ham the Great, authored a whopping 23-page dissent, that made us wonder in this post “if the majority judges want their hail and farewell (or whatever the Army calls it) gifts back [from Judge Ham, who soon thereafter departed the ACCA]?”

But then, as discussed in this post, in response to a defense petition for extraordinary relief, “CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.” The case returned to the ACCA, which issued a second en banc opinion (Gaskins II) (unpublished) setting-aside the sentence and authorizing a sentence rehearing. Again there were dissents, and again the Appellant sought extraordinary relief from CAAF, but this time it was denied and the sentence rehearing was conducted in October 2011, resulting in an approved sentence of confinement for nine years, total forfeitures, reduction to E-1, and a dishonorable discharge. Subsequently, in July 2012, the ACCA summarily affirmed the findings and sentence (Gaskins III). About ninety days later, CAAF granted review of the two issues shown above.

The case arrives at CAAF with a big question, a little question, and an unasked question. The Big Question (Issue I) is if the options of a non-verbatim sentence or a complete rehearing are the exclusive remedies for an incomplete record. The Little Question (Issue II) is the familiar Fosler issue, with an appellate wrinkle. And the Unasked Question is if the Appellant’s defense counsel can be ordered to affirm under oath that the missing exhibit didn’t end up in their case files…

The Appellant’s brief presents the missing exhibit issue in four parts: First, the loss of the exhibit is a “substantial omission” that renders the record incomplete, creating a presumption of prejudice that the Government must rebut (recognized in caselaw; see United States v. McCullah, 11 M.J. 234, 237 (C.M.A. 1981)). App. Br. at 9. Second, the Government has failed to meet its burden to rebut that presumption of prejudice caused by the incomplete record. App. Br. at 11. Third, the ACCA erred when it remanded the case for a sentence rehearing, because it lacks the authority to do so. App. Br. at 17-18. Finally, even if the ACCA had the authority to remand the case for a sentence rehearing, the record is still incomplete, there is still a presumption of prejudice, and there is still a need for relief. App. Br. at 21-22.

The Government’s response begins by conceding the Appellant’s first two points: that the missing exhibit is a substantial omission, and that the Government failed to rebut the presumption of prejudice. Gov’t Br. at 8. “The sole issue left in this case is whether the sentence rehearing, instead of a non-verbatim sentence, was an appropriate remedy for the incomplete record.” Id. On this point, the Government argues that “RCM 1103(f)(2) expressly authorizes a [sentence] rehearing,” and suggests possible factors to consider when fashioning a remedy for an incomplete record. Gov’t Br. at 9. The Government’s brief emphasizes this point with the following section:

While the words “sentence rehearing” do not specifically appear in RCM 1103(f)(2), the plain language of the rule clearly encompasses them. First, the language of the rule – “rehearing as to any offense” – is broad enough to encompass both findings and sentence rehearings. This interpretation is also supported by Article 60(e)(3), UCMJ, which authorizes a convening authority to order a rehearing, and Article 66(d), UCMJ, authorizing a Service Court to order a rehearing when the findings or sentence is set aside.

Second, independent sentence rehearings are consistent with this Court’s case law that reviewing authorities may determine whether the lack of completeness affects findings, sentence only, or both, and then shape relief accordingly.

Appellant’s argument that sentence rehearings are per se impermissible would lead to absurd results. Hypothetically, under appellant’s interpretation, convicted murderers would automatically receive a non-verbatim sentence if the government lost a sentencing exhibit. Congress and the President could not have intended that result when they drafted Article 54 and RCM 1103(f).

Gov’t Br. at 13-14 (notes omitted) (emphasis added). The emphasis is added to highlight a classic false dilemma. If a sentence rehearing alone is not permitted, a convicted murderer need not “automatically receive a non-verbatim sentence.” The murderer could instead receive a “[complete] rehearing as to any offense,” just as RCM 1103 provides. Moreover, it’s important to remember (as I noted in this post in May of last year) that:

[M]ilitary law recognizes three types of re-trials: a rehearing, a new trial, and an other trial (as in “another trial”). A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense.

It is perhaps inconvenient for the Government to re-try the merits of a case where the omission in the record is limited to a sentencing matter, but the Government’s brief doesn’t really explain why the RCM doesn’t require exactly that (and CAAF is pretty reluctant to read convenience into the MCM these days).

The Government’s brief then embarks on a discussion of equitable factors that could be considered when fashioning a remedy that isn’t either a complete rehearing or a non-verbatim sentence. The suggested factors are the way the exhibit was lost (“what this Court should not ignore, however, is that one reason DE A could not be reconstructed is the defense could not articulate with any specificity, nor provide substitutes for, the contents of their own exhibit.” Gov’t Br. at 15.), the ability to present the lost evidence in other forms (“Appellant had the opportunity to present a new, meritorious sentencing case at his rehearing. That is his right; it is not a burden.” Gov’t Br. at 17.), the ability of the military judge to fashion meaningful relief at a sentence rehearing (“The military judge correctly determined a remedy was appropriate for the government’s inability to produce DE A, and she severely limited the government’s sentencing case as a result.” Gov’t Br. at 18.), and if there would be a windfall in approving only a non-verbatim sentence (“Appellant was convicted of extremely serious offenses and was appropriately sentenced to a severe term of confinement.” Gov’t Br. at 22).

The Government’s brief presents a practical way to address an incomplete record, assuming the options of a non-verbatim sentence or a complete rehearing are not the exclusive remedies for an incomplete record (i.e., the Big Question). Unfortunately, despite being seductively practical (yeah, I’m being seduced by the Government here; don’t judge), the Government can’t avoid getting argumentative:

The government’s actions should be compared with that of appellant, and the apparent lack of importance of the evidence at issue. For example, appellant did not move to compel production of any documents he had trouble obtaining. Further, appellant was curiously unable to provide the names of all the colleges he attended [record of which were in the exhibit]. Either appellant was intentionally being obstructionist, or the colleges were not important enough for him to remember their names.

Gov’t Br. at 20 (notes omitted). At the time of the sentence rehearing, the Appellant had spent about four years in confinement (including pretrial confinement). Maybe his lack of participation in the rehearing was caused by sheer hopelessness. Maybe he saw the whole thing as a sham. Maybe he just felt like exercising his right to remain silent that day. Or maybe he was “intentionally being obstructionist”; a perfectly-rational reaction in the face of a twelve-year sentence that his lawyer (probably) kept telling him should be a six-month sentence. In a reply brief, the Appellant responds by claiming that the Government’s proposal would place the defense counsel into a “very real ethical dilemma,” requiring that he “assist the [G]overnment” in reconstructing the exhibit. Reply Br. at 3.

The other issue in this case is whether the Appellant’s convictions for indecent acts and indecent assault, both in violation of Article 134, should stand despite the Government failing to allege a terminal element. The Army CCA found that the Appellant waived the issue when he failed to raise it during the sentence rehearing, but the Government concedes that the CCA erred in that conclusion. Gov’t Br. at 28. This leaves just the Humphries plain-error analysis (the Little Question). But the Army’s Government Appellate Division appears to have embraced a new argument for this issue: the failure to object actually means that the Appellant was on notice of the terminal element.

There is no direct evidence in the trial record that indicates appellant was on notice of the terminal element. The circumstantial evidence of notice, however, is overwhelming. Appellant’s delay in raising the Fosler issue is strong evidence that he was on notice of the terminal element. As the 9th Circuit noted in Leos-Maldonado [302 F.3d 1061, 1065 (9th Cir. 2002)]:

‘[A] late challenge suggests a purely tactical motivation and is needlessly wasteful because pleading defects can usually be readily cured through a superseding indictment before trial. Additionally, the fact of the delay tends to negate the possibility of prejudice in the preparation of the defense, because one can expect that the challenge would have come earlier were there any real confusion about the elements of the crime charged.’

This sounds remarkably familiar; almost like CAAF’s opinion in Humphries created some type of hazard, by (as I wrote in this post) “giv[ing] trial defense counsel faced with a defective specification a reason to do nothing, waiting to complain only if the accused is convicted.” I wonder if we’ll hear the sounds of Chief Judge Baker banging his head against the bench during the oral argument.

Finally, there’s the Unasked Question. Is the missing exhibit in the possession of the defense? The Government’s brief comes as close to that question as I think it dares: “responsibility for a lost exhibit does not always lie entirely with the Government. All parties, including the military judge, trial counsel, defense counsel, and court reporter, ‘bear some responsibility for producing an accurate and complete record of proceedings…'” Gov’t Br. at 15. I can hear Judge Stucky’s voice in my mind, asking the Appellate Defense Counsel during oral argument, “you don’t have the binder, do you?”

I just can’t figure out if the voice is asking the question rhetorically. . .

Case Links:
Note: Multiple blog posts omitted; see our case page for the full history.
ACCA opinion (Gaskins I)
Blog post: Judge Ham Has A Few Parting Gifts for Her Friends
ACCA opinion (Gaskins II)
Blog post: Some thoughts about the Gaskins writ
ACCA opinion (Gaskins III)
Blog post: It’s b-a-a-a-ck; CAAF grants review of Gaskins
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview


19 Responses to “Argument Preview: United States v. Gaskins, No. 13-0016/AR”

  1. A Reviewer says:

    At the risk of getting schooled (but then learning would occur) 1103(f) has nothing to do with this case, so why is the court going down this rabbit hole?
    Zach, you say:
    “Rule for Courts-Martial 1103 provides that when a verbatim transcript cannot be prepared, due to loss of the recording, notes, or other reason, the convening authority may approve no sentence greater than confinement for six months, forfeiture of two-thirds pay per month for six months, and reduction to E-1 (a “non-verbatim sentence”); or the convening authority may direct a rehearing (i.e., redo the entire trial) as to any offense of which the accused was found guilty”

    1103(f) only applies if the steno notes or recordings are lost (in whole or in part) thus causing an incomplete (or no) verbatim record.  Plain English reading.  Without a complete verbatim record, it is not possible to see if there was legal error, and so the defendant is given the benefit of the doubt/of the error, and a lower sentence cap follows. 
    The point is that here, there was a proper, complete, verbatim transcript.  A verbatim transcript is not the same thing as a complete record of trial, and the difference can be seen in how 1103(b) addresses what is what.  1103(b)(2)(B) states that “a record of trial shall include a verbatim transcript” in certain cases.  So, a verbatim transcript is a subset of a record of trial. 

    Here, a defense exhibit that (from what I read) was only introduced at sentencing is missing.  The missing document here is an 1103(b)(2)(D)(v) document.  So yes, the record of trial is in fact incomplete, but 1104(d)(2) provides a much different remedy for an incomplete record (read, less advantageous to the defendant) than defense suggests.  A missing record of trial document (other than a missing vebatim transcript) does not trigger 1103(f) but rather 1104(d).  1103(f) is only triggered by a missing document required under 1103(b)(2)(B) or (c)(1) (i.e., a verbatim transcript).  1104 provides that the record should be corrected and could include, instead, a description of the exhibit as provided in 1103(b)(2)(D). 

    If that wasn’t enough: even if the defense exhibit had been present in the record, could the court have reduced the sentence on appeal, or disapproved a finding of guilt?  I don’t think so. 
    So, what exactly is the actual prejudice to the defendant (in addition to the fact that the remedy sought is not applicable anyway.) 

  2. Tami says:

    Looking at the government’s argument about windfall if he receives a non-verbatim sentence:  “Government can’t find any case, and appellant hasn’t cited any cases, where sentence was so drastically reduced for incomplete record.”  CAAF will have a field day with this:
    “Could it be that you can’t find any case law because a case with a non-verbatim sentence doesn’t usually undergo Article 66 or Article 67 review?”

  3. Michael A says:

    What about those cases where the omission isn’t discovered until the case is on appeal?  Or, cases like Gaskins, where the issue on appeal is whether the record is complete?

  4. Zachary Spilman says:

    A Reviewer:

    Good question. RCM 1103(b)(2)(B) talks about a “verbatim transcript.” RCM 1103(b)(2)(D) talks about “other matters” included in “a complete record,” which includes the exhibits. And RCM 1103(f) speaks of situations where “a verbatim transcript cannot be prepared.”

    So what if there is a verbatim transcript, but missing “other matters” (as in this case)? I think the answer is found in United States v. Henry:

    “The second granted issue, whether the record of trial is incomplete, is one that presents a question of law which this Court will review de novo. The requirement that a record of trial be complete and substantially verbatim in order to uphold the validity of a verbatim record sentence is one of jurisdictional proportion that cannot be waived. Records of trial that are not substantially verbatim or are incomplete cannot support a sentence that includes a punitive discharge or confinement in excess of 6 months. RCM 1103(b)(2)(B), Manual, supra.”

    United States v. Henry, 53 M.J. 108, 110-111 (C.A.A.F. 2000) (internal citations omitted) (emphasis added). In other words, the plain-language of the RCM is too narrow. For instance:

    “A complete record of the proceedings and testimony shall be prepared…”

    Article 54(c)(1) (emphasis added). So, as explained in Henry, the record must be “complete and substantially verbatim.” RCM 1103(f) applies to more than just a situation where “a verbatim transcript cannot be prepared.” Applying that to this case:

    “First, is the omission from the record substantial or insubstantial? Second, if the omission is substantial, has the government rebutted the presumption of prejudice to appellant? And third, if the government fails to overcome the presumption of prejudice, what is the appropriate remedy?

    “The first two questions are not at issue in this case. The Army Court already decided that the omission of DE A from the record was substantial, and the government did not overcome the presumption of prejudice. The sole issue left in this case is whether the sentence rehearing, instead of a non-verbatim sentence, was an appropriate remedy for the incomplete record.”

    Gov’t Br. at 8 (footnote omitted). Big (though probably inevitable) concession by the Government there.

    I assume the procedures outlined in RCM 1104(d) can’t be used in this case because there is no way to reconstruct the exhibit (despite what appears to be some significant effort to do just that).

  5. Tami says:

    A Reviewer:
    You overlooked the the third reason for why a verbatim transcript can’t be prepared:  “or other reason.”  In this case, a verbatim transcript can’t be prepared because there is no adequate description of the “good soldier book” in the verbatim transcript so as to make the record complete for convening authority or appellate review.  Due to the loss of the exhibit and the inability to recount with specificity what was in the good soldier book or to recreate it (which shouldn’t be shocking, considering it was 3 inches thick), it is impossible to have a complete record in this case.  A ream of paper is 500 pages and 2 inches thick, so a fair estimate of the number of pages in this binder is 750 pages!  Is there anyone who can recall precisely what was contained in those 750 pages?
    The defense’s point in this case is that, given the impossibility of ever having a complete record in this case, ACCA shouldn’t have bothered sending it back for sentence rehearing, it was obligated to approve no more than a non-verbatim sentence.  Article 66(c) requires courts of criminal appeals to affirm only findings of guilty and sentence that are correct in law and fact, based on the entire record.  A sentence that exceeds what is allowed by law is not correct and therefore can’t be approved.  The courts have to look back to the original trial, because the loss of the exhibit is part of the “entire record.”  And the bottom line is that the loss of the exhibit and the inability to recreate it means the “entire record” is incomplete.

  6. A Reviewer says:

    Not sure I buy that. 
    Yes, the record is incomplete, but the transcript isn’t. 
    Maybe I am being too “mathematical” in my reading of the rules. 
    I don’t think “other reason” applies here, since the lack of that exhibit does not, in my mind, make the verbatim transcript incomplete.  It would be like saying that you have to look at the exhibit to see if foundation was established, and if the exhibit is not present you can’t tell if foundation was properly laid; no, of course not, you look at the transcript to see if it was laid, not at the exhibit itself.  Come to think of it, how was the exhibit introduced, even under relaxed rules, without: a, some sort of description of the book; and b, at sentencing, defense counsel didn’t even highlight the important parts of the book?  Yet we are to believe the defendant was so prejudiced now even though the exhibit would have little weight on appeal?

    The missing exhibit makes the record incomplete, not the transcript; you already have my argument above as to why the two terms are not interchangeable, and the remedies that attach to each.

  7. Tami says:

    Michael A:
    I assumed the parties couldn’t find any case law because no case law exists, since:  (1) the loss of the exhibit was remedied at the CA level, thus resulting in Article 69 review, or (2) the loss was remedied at the service appellate court, but the court issued a summary opinion.  Even if there was an unpublished opinion on this exact same issue, it would be really hard to find unless you’re familiar with the case or you have the time to go through every single unpublished opinion on ACCA’s website.  So to me, the government’s argument that defense didn’t support its argument with case law seemed disingenuous.
    There are only a couple of other times I can recall a similar issue like this, one of them was Andreozzi, failure to get his forum selection on the record, and no one could find a piece of paper showing forum selection–that case was sent back for 2 Dubay hearings to “recreate” the record and fortunately, by the second Dubay hearing, someone found the piece of paper his defense counsel signed showing trial with enlisted members, so it became a dead issue.
    A Reviewer:
    Welcome to the school.  I encourage you to go to your nearest Army installation to watch a contested court-martial, most of them are public proceedings.  A lot of the cases can be quite fascinating.  I think you’ll find that during the sentencing phase, when sentencing documents are introduced and accepted into evidence, there is rarely a detailed description of the document on the record, since the exhibits are required to be included in the record of trial.  In this case, a “good soldier’s book” that is about 750 pages thick, there is no way there would be a page by page description of this exhibit in the transcript.  And if you look at the previous opinions on this case, you’ll see there was a general description of some of the documents, and I’m sure defense counsel highlighted certain excerpts during argument, but the problem is that it can’t be recreated with enough detail so that it’s omission is insubstantial.  Previous attempts to recreate it failed.
    Do not underestimate the power of a good soldier book.  A really good “good soldier book” can keep a client out of jail.  It can keep a client from getting kicked out of the service with a punitive discharge.  It can convince a convening authority to show some mercy.  It can convince a court of criminal appeals to reduce a sentence.  This isn’t something that has “little weight on appeal.”

  8. Phil Cave says:

    Ah, Tami refers to the 800 pound gorilla, the accused’s last best chance.

  9. TC says:

    Not to discount the effectiveness of a good soldier book in a sentencing case, but this accused was convicted of carnal knowledge and indecent acts with the 12-yr-old daughter of a fellow soldier.  It would take an awful lot of silver stars to convince a CCA to reduce his sentence.

  10. OPLAW-LCDR says:

    On the “Unasked Question”: let’s assume for a moment that the missing exhibit really is in on of the DC’s files. I doubt that will ever be asked. It seems to me that when it was accepted as an Exhibit, the book possibly became property of the US. So, if someone asks from the bench, “do you have it?”, that seems to me to trigger a potential Art’s 81, 107, 108 and/or 121, and 133 liability. Since counsel asserting their 5th Amendment privilege and Art 31 warnings make for a messy oral argument, I predict the issue never is mentioned in the court. Too dangerous. 

  11. Zachary Spilman says:

    A Reviewer:
    The missing exhibit makes the record incomplete, not the transcript; you already have my argument above as to why the two terms are not interchangeable, and the remedies that attach to each.

    Henry, as cited above, ties the terms together. Whatever the available remedies, they are the same for an incomplete record as for an incomplete transcript.

  12. Tami says:

    I know, he was convicted of some bad crimes.  But it wouldn’t matter if he’d been convicted of killing someone and sentenced to LWOP.  If a missing exhibit constitutes a “substantial omission,” and it can’t be reconstructed, then there is no point in sending the case back for rehearing on sentence, and the government is stuck with a non-verbatim sentence.  That is the law.  That’s what Judge Ham’s dissent was all about, and that’s why so many CAAFloggers enjoy her dissent (plus she didn’t hold anything back).
    Incidentally, there was a case in Korea in 2006, soldier pled guilty to rape and got 5 months of confinement, reduction, some forfeitures, no kick.  A colleague had a client convicted of involuntary manslaughter–DUI that killed his best friend, sentenced to confinement but no kick.  Another colleague of mine had a client convicted of child porn, hard labor w/o confinement, no kick.  I had a client convicted of child porn, 90 days confinement, no kick.  A client convicted of 2 1/2 year AWOL, reduced 1 rank and 90 days hard labor without confinement, no kick. 
    My favorite case was a client accused of attempted premeditated murder for stabbing his roommate while they were both so drunk they should have been dead, found guilty of aggravated assault, sentenced to 1 year, no kick.  The cherry on top was he only served 6 1/2 months of confinement, and was done by the end of his trial.  His unsworn statement was probably the most powerful piece of sentencing evidence we had, and the court reporter referred to it in the transcript as only “Defense Exhibit F,” because it was pretty long and the transcript was already over 1,000 pages, so she didn’t want to type the whole thing when it was already an exhibit.  Had the government lost his unsworn statement, I would have made the same argument Gaskins is making.

  13. TC says:

    I understand your point, and I don’t disagree that this sort of evidence can and often does make a huge difference in a sentencing case.  I also understand the legal argument here for a non-verbatim sentence.  But I don’t agree that the appellant sufferend any actual prejudice, as I’m unable to think of a situation where such evidence would lead to a reduction of the sentence at CCA.  Granted, the procedural posture of this case makes that a moot issue at this point.  But I think CCA should have said that even had the missing evidence demonstrated that the accused was awarded the Medal of Honor on multiple occasions, we still find this sentence to be appropriate.

  14. N says:

    For the talk about a sentencing exhibit convincing the CA to show clemency, remember that a CA only has to consider (1) the result of trial, (2) the SJAR, (3) clemency matters. A CA may consider the record of trial, but does not have to.  
    While I don’t know this CA (or what they reviewed), I’m willing to bet they weren’t reading a 750 page “good soldier” book unless they had to. If your character evidence is that good, include it in clemency.

  15. Michael A says:

    I think you overstate what Judge Ham actually said in her dissent.  She does not say that a substantial omission that prejudices the appellant always results in a non-verbatim sentence (NVS). 
    Judge Ham recognizes that multiple remedies are available in cases like Gaskins, including a sentence rehearing OR a NVS.  69 MJ at  586.  Ultimately, Judge Ham concluded that a sentence rehearing was not appropriate in Gaskins becasue it was “fundamentally unfair and unjust to task appellant to locate, recretate, or otherwise find adequate substitutes for all of the lost GOVERNMENT documents, awards, and certificates when the GOVERNMENT itself was unable after trial…to do so.”  69 MJ at 587.
    I think reasonable minds can differ over whether it is actually unfair for the appellant to have to do that.

  16. Dew_Process says:

    I’ll give you two Army cases:  US v. Dixon, – Dixon was a West Point cadet convicted by GCM, sentenced to a Dismissal and 13 months confinement.  Before the verbatim transcript was completed, the Court Reporter claimed that the remaining tapes were stolen and that he couldn’t do a verbatim transcript.  Ultimately over our objections, the CA approved a sentence of “time served” [about 3 months] and some forfeitures.  Article 69, relief was thus denied as was our writs.
    The other case is more analogous:  U.S. v. Godfrey Hurley.   I was DC in Hurley and somewhere along the line after he was convicted and sentenced to LWOP for premeditated murder, @ 10 exhibits to the Record “disappeared.”  ACCA summarily affirmed and CAAF denied review.  I don’t have the unpublished ACCA decision so don’t know what their basis was in affirming.

  17. Jim Clark says:

    I am more interested the unasked question or its corrollary: this is a good soldier book. It is composed exclusively by defense counsel and the accused. Is it really not possible to recreate the book at least substantially? All the good stuff in the background of the accused is still good stuff. This is pieces of paper. The idea that it cannot be replicated seems unlikely.

  18. SFC V says:

    Assuming that the only two ooptions are a complete rehearing or a NVS, why should the court limit the sentence instead of returning the record to the CA with direction that the CA may either approve a lesser sentence or order a full rehearing?
    Can the defendant produce the exhibit at a new trial?  If not a rehearing likely won’t change much but I have a hard time buying that this thing can’t be reproduced.    Me thinks the accused doesn’t want to reproduce it in hopes of getting a windfall.  If the court does allow a complete rehearing doesn’t the accused then have motivation to produce the exhibit?  If the exhibit is reproduced doesn’t that create an interesting issue about appellate counsel’s assertion that the defense was unable to reproduce DE A?
    If we don’t know what’s in DE A how will we know when it’s found or whether a reproduction is an accurate reproduction?  Who produces a 750 page exhibit and doesn’t keep some sort of record of its contents?  Not telling the government what is in the exhibit seems like a surefire way to keep them from reproducing it. 

  19. John Harwood says:

    Mr Clark, you bring up a really good point.  What if defense counsel could re-create the exhibit (or even hand over the photocopy he/she likely made)?  Does a DC have an ethical obligation to assist the court and TC to perfect their record, or do they have an obligation to NOT turn something like that over, knowing that it will limit the sentence that can lawfully be imposed?