In this post from February I discussed United States v. Seton, Misc. Dkt. No. 2013-27 (A.F.Ct.Crim.App. Feb. 24. 2014) (link to order), where the military judge dismissed the charge with prejudice as a remedy for the Government’s failure to preserve the video recording from a military dormitory’s surveillance system. The AFCCA affirmed the judge, finding that the video is of central importance in this case where Appellee is charged with one specification of sexual assault in violation of Article 120 (2012), “alleging the appellee caused bodily harm to Airman First Class (A1C) BB through nonconsensual vaginal intercourse.” Order at 1. The CCA concluded:

The military judge reasonably determined A1C BB’s credibility was a central issue in the case and the video may have supplied a basis to impeach A1C BB’s earlier statements about the incident. In short, only two people know for certain what happened in the appellee’s dormitory room; no other direct evidence is available concerning what transpired in that room. Video that apparently would have directly impeached the credibility of one of those two people is reasonably categorized as “of such central importance to an issue that is essential to a fair trial.” R.C.M. 703(f)(2).

Order at 6. Additionally, the CCA determined that testimony is no substitute for the video. Quoting the military judge’s ruling, the CCA noted that, “The old adage, ‘A picture is worth a thousand words,’ comes to mind at this point.” Order at 7.

The JAG had less than a thousand words in response:

No. 14-6008/AF. U.S., Appellant v. Steven E. SETON, Appellee. CCA 2013-27. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING WITH PREJUDICE THE CHARGE AND SPECIFICATION BASED ON ALLEGED GOVERNMENTAL VIOLATIONS OF ARTICLE 46, UCMJ, R.C.M. 701, AND R.C.M. 703.

11 Responses to “Air Force JAG certifies Seton”

  1. Bill Cassara says:

    One of these days I am going to open CAAFLOG and see that the AF TJAG certified a case that was decided contrary to the defense.  Nah. 

  2. RKincaid3 says:

    Now, let’s not be so hard on the AFTJAG.  By filing the appeal–he is showing Congress how serious he is about fighting the military’s “rape culture”–especially when that culture, as in this case, allows the government’s own conduct (destruction of evidence that might be helpful to the accused) and quaint but archaic, unnecessary notions of due process to interfere with a “victim’s” “right” to “retribution.”  
     
    You wouldn’t want the AFTJAG to stand up for—ummm—I don’t know—justice, or anything like it, would you?

  3. Dew_Process says:

    MEMO TO AF TJAG:
     
    1)  Both the MJ and AF CCA found that the “lost” video was relevant and material “evidence,” thus there is nothing “alleged” about the government violations.
     
    2)  Is there some classified codicil to Art. 92, UCMJ, exempting Air Force members from “dereliction of duty” offenses when they somehow “lose” a key piece of evidence in what everyone will agree is a serious allegation and where two Air Force courts have already found the videotape was evidence of “central importance?”
     
    3)  RECOMMENDATION:  Mandate a CLE for all members of the AF JAGC, AF OSI, and SFI on the concept recognized in the “real” world of the law, i.e., evidence “spoliation.”  See:  http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/DallasMiniConf_Empirical_Data/Federal%20Judicial%20Center.pdf
     
    4)  There was a reason that Congress enacted Article 135, UCMJ, and prudence — if not good faith — would appear to dictate its use in (a) ascertaining what happened to the lost videotape; and (b) ensuring corrective measures in these types of scenarios.

  4. af_dc says:

    Dew_Proces:Isn’t this what Art 98 is for? Just sayin’.
     

  5. RKincaid3 says:

    Dew_Process:  Thanks for the link to that PDF file–great info!

  6. Christian Deichert says:

    You know, I was just researching a best evidence issue the other day, and it occurred to me that the word “spoliation” almost always only comes up in a military context when we’re talking about Article 109 and spoiling real property.  Maybe it comes up more often in the unreported cases, but I didn’t see much.

  7. slyjackalope says:

    Spoliation of video recordings under government control is definitely a big problem in the military.  There are so many cameras on military installations and it’s rare that anyone thinks to collect the recordings as evidence before they’re overwritten.  I’m constantly reminding the MPs to preserve gate videos or risk me dismissing their cases because I can’t meet my discovery obligations to at least review the videos for potentially exculpatory material.  In some cases, great evidence that likely would have been inculpatory turns into a reason for dismissal.
     
    I know this is kind of a stretch, but maybe AF TJAG certified this case so CAAF will uphold the AFCCA on this and drive the point home that we have to be diligent in preserving video recordings.
     
     

  8. RKincaid3 says:

    Skyjackalope:  I would bye that as a “just” reason for the AFTJAG to have done this.  At least that would be defensible and justify the appeal.  The problem with it is that the legal reasons for convictions are largely lost on non-lawyers–all non-lawyers see is the end result and they don’t care about the legal reasons.  They only see what they may or may not like–the end result–without regard to the legal reasons for that result.  
     
    In short, even if the AFTJAG proceeded on the basis you state, the lesson will be lost on the non-lawyers who will just see lawyers having a bunch of excuses for not getting the desired results.

  9. Dew_Process says:

    @ af_dc – Not really, unless there’s nothing else “pre-empting” it, e.g., dereliction of duty, etc.  Studying the Legislative History of Art. 98(2), UCMJ, shows that Congress intended that to primarily “put teeth” into combating UCI [which has been uniformly ignored], with a secondary purpose of ensuring compliance with Article 31(b).  I think you’re right IF the facts showed a “knowing and intentional” destruction of the evidence, however.
     
    As an AF DC, I personally preferred charges under Article 98(2), twice — both involved what was back then a common practice, i.e., to deliberately not advise a suspect of their Art. 31(b), rights; obtain admissions or a confession, then give purported “cleansing” warnings to repeat the information from the tainted version. Aside from a facial violation of Art. 31(b), it also went counter to the intent of Miranda / Tempia — but was a common practice in both military and civilian law enforcement until SCOTUS decided Missouri v. Seibert,542 U.S. 600 (2004). The opinion of the Court in Seibertwas only a plurality, so Justice Kennedy’s concurrence in the Judgment and his opinion (on a narrower basis than the plurality) is important.  See, id. at 618.
     
    Both of my client’s received favorable, non-judicial dispositions, and of course the government “declined” to pursue the Charges that I had preferred.  Some things appear never to change . . . .

  10. Christian Deichert says:

    I remember Seibert and how it put a stop to the fad of unwarned “pre-interrogation interviews.”  A practice best put to an end.

  11. Phil Cave says: