Yesterday, in a one-page order you can read here, CAAF summarily ruled against the Air Force in the certified case of United States v. Seton, No. 14-6008/AF. Seton is one of the cases supporting my finding of the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force.

I discussed the CCA’s opinion in this post from February. The case involved a Government interlocutory appeal of a military judge’s order dismissing the charge with prejudice as a remedy for the Government’s failure to preserve a video recording from a military dormitory’s surveillance system. The AFCCA affirmed the judge’s ruling dismissing the case, 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 nonconsensual vaginal intercourse.

On April 2, the Judge Advocate General of the Air Force continued the appeal to CAAF, certifying the following issue:

Whether the military judge abused his discretion by dismissing with prejudice the charge and specification based on alleged Governmental violation of Article 46, UCMJ, R.c.M. 701, and R.C.M. 703.

CAAF rules:

On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Apr. 2, 2014), and Appellee’s motion to supplement the record, we conclude that the military judge did not abuse his discretion in finding a Rule for Courts-Martial 703 violation and dismissing the Charge and Specification with prejudice. Accordingly, it is, by the Court, this 12th day of May, 2014,

That the motion to supplement the record is granted;
The certified issue is answered in the negative; and,
The decision of the United States Air Force Court of Criminal Appeals is affirmed.*

A footnote adds: “Chief Judge Baker and Judge Ohlson would have held oral argument before deciding this case.”

5 Responses to “CAAF summarily rules against the Air Force in Seton”

  1. k fischer says:

    I’m surprised both AFCCA and CAAF found the destruction of the video prejudicial.  Even taking the Accused’s position and description as true, certainly many victims of sexual assault behave amorously after the rape as it might be their only means of escaping their rapists. And, even though her account was allegedly contradicted by the post-rape video, the trauma of the Servicemember not immediately ceasing the rape could have caused her to suffer memory loss.

  2. Zeke says:

    @k fischer:  The video also directly contradicted the complainant’s testimony regarding her recollection of significant events between her and the accused before she entered the accused’s room.  It directly demonstrated the severity of the defects in her recollection of all aspects of the night in question.  The cause of those defects in her memory (whether trauma induced – btw, there is no evidence of trauma – or human frailty, or a penchant for falsity) is really irrelevant.  The question is simply whether the members can trust her accounting as being accurate.  The destroyed video demonstrated exactly how unreliable she was as a witness.  Being that she was the only witness to this alleged crime, the video showing severe defects in her memory of circumstances surrounding the alleged offense was critically important, and it’s loss was irreparably prejudicial.  This wasn’t a close case.  It should have never been charged, and it should have never been appealed.  Then, after a three judge AFCCA panel unanimously agreed with the trial judge, it should not have been certified.  Its a symptom of a system which values prosecutorial zeal over prosecutorial discretion; trials over justice.

  3. Bill Cassara says:

    Um, knowing K Fischer as I do, I am sensing a bit of sarcasm in his post.

  4. Zeke says:

    Ah, I apologize to k fischer then. 

  5. k fischer says:

    Shhhhhh.  I’m trying to get an invite to the next RSP.