In United States v. Smith, No. 201400400 (N-M. Ct. Crim. App. Feb. 10, 2015) (per curiam) (link to slip op.), the NMCCA grants a Government interlocutory appeal of a military judge’s ruling that dismissed some of the charges with prejudice as a remedy for the Government’s loss of an apparently exculpatory surveillance video recordings of the following alleged incidents:
The appellee was a military police patrol supervisor. Lance Corporal (LCpl) JK4 was one of his subordinates and stood watch in the lobby of a secure law enforcement facility known as MDIA. On 28 October 2013, the appellee stopped at the lobby while LCpl JK, Cpl Pelligrino, and Cpl Toner were on duty. While there, the appellee is alleged to have approached the front desk, picked up a bottle of hand sanitizer, pointed it at LCpl JK and squirted some of the contents onto her shoulder, stating “Oops, just splooged on you.” This allegation, in part, formed the basis for sexual harassment and maltreatment charges against the appellee.
On 11 November 2013, the appellee arrived to conduct his rounds at the MDIA lobby. In the presence of Cpl Toner and LCpl JK, the appellee is alleged to have been unable to properly open a door and to have fallen asleep on the desk. This conduct forms the basis of a dereliction of duty charge against the appellee.
Slip op. at 2-3. The facility in which the appellee worked was under video surveillance. The video was reviewed by personnel who stated that the video “is not showing that someone approaching the front desk squirted hand sanitizer on any of the officers” and that the reviewer “did not see the appellee have difficulty opening the door.” Slip op. at 3. However, the video recordings were not preserved, and were destroyed after 30 days.
Independently of the video evidence, the appellee was interrogated and “admitted that he had ‘accidentally squirted’ hand sanitizer on JK and said ‘oops, just splooged on you.'” Slip op. at 4.
The defense moved to dismiss because of the Government’s failure to preserve the video recordings. The military judge found that the lost video recordings were “relevant, necessary, and essential to a fair trial” both for factual and impeachment purposes. Slip op. at 4. Then, in a ruling reminiscent of the Air Force case of United States v. Seton, Misc. Dkt. No. 2013-27 (A.F. Ct. Crim. App. Feb. 24, 2014) (discussed here), aff’d, 73 M.J. 346 (C.A.A.F. May 12, 2014) (summary disposition) (discussed here), the military judge dismissed the affected charges with prejudice. The Government appealed.
The NMCCA grants the Government appeal, but not because it agrees with the Government that the destruction of the video does not require the remedy of dismissal with prejudice. Rather, the CCA finds that the judge’s analysis of the issue was incomplete:
The military judge entered incomplete findings which lead to inadequate analysis. First, he failed to recognize the appellee’s admission and omitted any analysis of what impact that it would have on the importance of the destroyed evidence. Moreover, he overlooked findings on the totality and quality of Ms. Bullard’s [the woman who reviewed the video -zds] testimony and omitted any analysis on whether that testimony would provide an adequate substitute for the destroyed footage. The lack of these necessary findings and analysis constrains our ability to adequately determine if the military judge abused his discretion in dismissing the specifications. In light of these incomplete findings, the appropriate remedy is a remand for additional findings and analysis. Kosek, 41 M.J. at 64.
Slip op. at 8.
Notably, the alleged victim’s appointed Victims Legal Counsel also sought to be heard:
On 20 January 2015, Victim’s Legal Counsel representing Corporal (Cpl) JK filed a Petition for Extraordinary Relief in the Form of a Writ of Mandamus with the court pursuant to the All Writs Act. The petitioner seeks a “Stay until this Court rules on this Petition and Petitioner seeks a Writ of Mandamus setting aside the Trial Court’s rulings of October 14, 2014, under RCM 703, and directing the Military Judge to treat Cpl JK with fairness and respect for her dignity pursuant to 10 U.S.C. § 806(b) by providing her an opportunity to “be heard” prior to ruling on the defense motion to dismiss all charges and specifications.
Slip op. at 2. The CCA’s opinion does not address this petition, and its remand presumably moots the issue (for now).