CAAF granted review in two cases last week. One was another ultimate offense doctrine case:

No. 14-0650/AR. U.S. v. Kenneth E. Hagstrom. CCA 20121058. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEAS OF GUILT TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSES AT ISSUE WERE THE MINOR OFFENSES OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT’S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER’S OFFICE TO LIFT THE DUTY “ABOVE THE COMMON RUCK.”

No briefs will be filed under Rule 25.

Notably, this is the fourth trailer to United States v. Phillips, No. 14-0199/AR (CAAFlog case page), which was argued on October 20.

The other grant was in a Navy case:

No. 14-0744/NA. U.S. v. Allyssa K. Simmermacher. CCA 201300129. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corp Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHEN THE GOVERNMENT DESTROYS EVIDENCE ESSENTIAL TO A FAIR TRIAL, THE RULES FOR COURTS-MARTIAL REQUIRE THE MILITARY JUDGE TO ABATE THE PROCEEDINGS. HERE, THE GOVERNMENT NEGLIGENTLY DESTROYED THE SOLE PIECE OF EVIDENCE THAT PROVIDED THE BASIS FOR APPELLANT’S CONVICTION PRIOR TO BOTH THE REFERRAL OF CHARGES AND THE ASSIGNMENT OF DEFENSE COUNSEL. SHOULD THE MILITARY JUDGE HAVE ABATED THE PROCEEDINGS?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA affirmed the appellant’s conviction for wrongful use of cocaine despite the fact that the Government destroyed the appellant’s urine sample one year after it tested positive (in accordance with standard policy), preventing the appellant from obtaining a retest.

This is the second CAAF grant in a Navy case in a month (the other was United States v. Castillo, No. 14-0724/NA (CAAFlog case page)), and they occur after a term in which CAAF didn’t hear oral argument in any Navy cases.

One Response to “Two new CAAF grants”

  1. RKincaid3 (RK3PO) says:

    Re: Simmermacher, this is an all too common problem with society generally and with politicians and judges specifically:  they don’t understand—or in the case of judges, have forgotten—the concept of managing a diverse society full of diverse interests.
     
    Part and parcel of governing generally—especially in America—is that the burden is on government to prove its case and if that requires storing evidence for years and years, so be it.  This is because the only way to prevent the wrong person from being subjected to government’s coercive power to destroy a life with prison time—and impose the stigma associated with conviction—is to hold the government’s feet to the proverbial fire by demanding that it undertake all the costs and expenses necessary to obtain and support the conviction until the judicial system of review is exhausted.  It is an appropriate “check” on the system and on government power—thus preserving “liberty.”
     
    Another part of governing a diverse society, generally, is that there must be finality to all matters.  That is why there are such things as statutes of limitation—on both criminal and civil claims—and on appeals.  That is why there are limits on appeals, as well.  Politicians, on society’s behalf, have forgotten that fact in their thirst for revenge for certain offenses; or as a result of their shock at the offensive nature of many offenses against not only society generally, but against sympathetic and innocent individuals specifically.  That is why we no longer have statutes of limitation in sex assault cases—and is why people now openly advocate the complete dehumanization of certain convicts via SOR and denial of rehab opportunities after conviction and after they convict has paid for their crimes; what used to be called “paying their debt to society.”  Apparently now-a-days, the debt owed to society for certain offenses never expires.  And unlike murder, from which the victim can never recover, we have legitimized the perpetual outlawing of those who commit certain offenses which are not final and from which the victim may recover—for example, sex assault.
     
    And judges too, apparently have forgotten that they took an oath to apply the principles of the constitution and law through rules and procedures to effectuate justice; and justice results from the proper vitiation and tempering of the all too natural human desire for vengeance with an appropriate measure of mercy.  Judges are to stand athwart petty vengeance seekers—whether the means of vengeance is codified societally as a statute or presents individually via ruthless presentation of biased or irrelevant testimony.
     
    Will the court in Simmermacher case hold the government to its burden and overturn the accused’s conviction because government failed to do its job—despite its abundant resources (abundant as compared to those of an accused)—by prematurely destroying the evidence?  It really matters not at all that the sample was destroyed in accordance with standard procedure—a fact that only someone who wants to justify government’s failure to do its job by drawing a meaningless distinction upon whether the sample was destroyed with malicious intent to deny a fundamental right or was the result of a simple mistake.  Regardless, creating or perpetuating yet another exception to government’s burden before society can confine or punish anyone—no matter how heinous their crime—defeats the protection offered by the rules and laws.  Enough of these senseless judicial distinctions without a meaningful difference and which ultimately do more social harm than good.  Enough of a society that has learned that so long as vengeance is “legal” under some statute—no matter how unprincipled and untethered by constitutional considerations—then the judge’s job is simply to rubber stamp that societal vengeance.
     
    I mean, really, with all the time and money and resources possessed by government, does it really need yet another excuse for NOT doing its job?  Does it really need the judiciary to sit back and say “c’est la vie,” no harm no foul—after all, the accused did do to crime—the only error is that government can’t prove it using the established appellate procedures.  So, this is isn’t revenge, it is legal.”
     
    This is not about demanding perfection of or from government—it is about demanding that government remain constrained by and tethered to the constitutional limits upon its and society’s thirst for vengeance and retribution.  This is about managing a society wherein social wrongs—and the task of righting those wrongs—do not occur in a vacuum.  Indeed, only a small part of managing society is the collective, social concern about the subjective feelings of a few individuals regarding their own personal status as a “victims” of a crime.   Focusing only upon vengeance and the subjective “feelings” of crime victims creates a whole class of societal victims—albeit victims that are not sympathetic—the offenders.  Society, via government, cannot be or be allowed to become the agent of vengeance sans mercy or there will one day be no society—only those who make rules without mercy or other considerations and those who are victims of those rules, also known as “King George redux.”