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.
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.”