CAAF will hear oral argument in the Navy case of United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page), on Wednesday, February 25, 2015, at 9 a.m. The case presents a single issue regarding the destruction of Appellant’s urine sample one year after it tested positive for the metabolite of cocaine:
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 HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?
Appellant was convicted contrary to her pleas of not guilty, by a general court-martial composed of members with enlisted representation, of making a false official statement and wrongful use of a controlled substance, in violation of Articles 107 and 112a, UCMJ. She was sentenced to reduction to E-3 and a bad-conduct discharge.
Appellant’s positive urinalysis was the result of a routine random urinalysis that occurred while she was under investigation for allegations of child abuse (charges that were later severed from the 107 and 112a offenses). But despite that ongoing investigation, the Government did not preserve the urine sample for possible retesting beyond the standard one-year retention period for a positive sample. Appellant’s brief provides the following timeline:
Mar 7, 2011 – urine sample collected
Mar 14, 2011 – command was informed that sample was positive and that it would be destroyed on March 16, 2012
Mar 16, 2012 – sample destroyed
Mar 28, 2012 – charges preferred
Apr 3, 2012 – government provided initial discovery
Apr 6, 2012 – defense counsel detailed
Jun 18, 2012 – defense counsel asked for retest of sample
Jul 10, 2012 – government notifies defense that sample was destroyed on or about March 16, 2012
App. Br. at 3. The defense moved to suppress the results of the urinalysis due to the destruction of the sample, but the military judge denied the motion. The judge ruled:
After considering all the evidence, the military judge denied the appellant’s motion to suppress. AE XLII. He concluded the following: that the appellant had not met her burden of having shown bad faith on the part of the Government; that the sample was destroyed as part of the NDSL’s normal handling procedures; and, that the appellant had provided no evidence that the retest would have had any exculpatory value. Id. As a remedial measure, however, the military judge instructed the members that the sample was destroyed and that they may “infer the missing evidence would have been adverse to the prosecution.” Record at 892.
United States v. Simmermacher, No. 201300129, slip op. at 4 (N-M. Ct. Crim. App. May 29, 2014). The NMCCA affirmed.
CAAF’s action in this case will undoubtedly clarify the court’s opinion in United States v. Manuel, 43 M.J. 282 (C.A.A.F. 1995), where CAAF affirmed a decision of the Air Force Court of Military Review that held that “the Government’s failure to exercise due diligence, comply with regulatory guidance and preserve a reported positive urine sample denied appellant equal access to all evidence as required by Article 46.” 39 M.J. 1107 (A.F.C.M.R. 1994). In Manuel, CAAF found that
Loss of this evidence was particularly significant here, as there was a genuine controversy as to nanogram level in the specimen. The initial reading was close to the 150 ng/ml cutoff. The accused testified on the merits, and he denied using cocaine and stated that he did not have any explanation for his positive urine samples. He established a sincere desire for an independent-expert test, and his attempt to obtain a retest was not perfunctory. Indeed, he offered to pay for the tests at his own expense. . . . Here, but for the destruction of the urine sample, the military judge could have afforded the right to an independent test to the accused. In the narrow facts of this case, we find that the accused raised a viable issue as to the accuracy of the urinalysis results. To require more would place an insurmountable burden on an accused.
43 M.J. at 288-289 (citations omitted). The Government’s brief in Simmermacher notes differences between this case and Manuel, such as the routine nature of the destruction of the evidence and the assertion that “there was no evidence here that contradicted the urinalysis results, Appellant did not testify on the merits, and there was no genuine controversy as to the nanogram level.” Gov’t Br. at 13.
Yet Appellant’s position is that these factors don’t matter:
The lower court’s and military judge’s reliance on this statement in their R.C.M. 703(f)(2) rulings shows a fundamental misunderstanding of the value of a retest. It assumes the initial testing was accurate and that there was no adulteration or misidentification of the sample. It is this very assumption the defense was prevented from exploring when the Government destroyed the urine sample.
To allow HM3 Simmermacher’s conviction to stand under such circumstances not only undermines servicemembers’ confidence in the fairness of the urinalysis program, it undermines the fundamental fairness of the military justice system.
App. Br. at 10-11.
CAAF may also focus on the effectiveness of the military judge’s remedial instruction in the context of the permissive inference of wrongful use that may be drawn from a positive urinalysis result:
The Military Judge, to address the destroyed urine sample, instructed the Members that they
[M]ay infer from the positive urinalysis test, for the presence of cocaine, that the accused knew she used cocaine. However, drawing of any inference is not required. Because the sample was destroyed after 1 year, you may infer that the missing evidence would have been adverse to the prosecution. However, you are not required to draw this inference.
Gov’t Br. at 5. See, generally, United States v. Bond, 46 M.J. 86 (C.A.A.F. 1997) (discussing the permissive inference of wrongful use). This instruction and its dueling inferences is somewhat confusing, and it’s debatable whether it served to remedy the destruction of the sample or whether it made the problem even worse.
Ultimately, Appellant’s position is blunt:
Under the circumstances of this case, no remedy other than suppression of the lab report or abatement of the proceedings could cure the fundamental unfairness of this trial caused by the Government’s destruction of essential evidence. The lower court’s opinion means the Government can destroy urine samples with impunity and force an accused to trade a defense for a military judge’s instruction.
App. Br. at 19. CAAF may not see the facts of this case as presenting so stark a choice.