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.