And a handful of cases from the past year reveal just how terrifying it can be when the Government comes to help.
The warning sign appeared in late 2014, with CAAF’s decision in the Marine Corps case of United States v. Vargas, 74 M.J. 1 (C.A.A.F. Dec. 8, 2014) (CAAFlog case page), our #6 Military Justice Story of 2014. In a 4-1 decision the court held that a military judge’s denial of a mid-trial recess is not a ruling that excludes evidence, meaning that the Government may not appeal the denial under Article 62. The accused in that interlocutory case faced a special court-martial for a single specification of assault consummated by a battery, and trial before members was expected to take three days. But trial proceeded faster than anticipated, and by mid-afternoon on the first day the prosecution was not prepared to present any more evidence until day two. So Government counsel requested a recess until the following morning. But the military judge denied the recess, leading to the appeal.
Yet one of the witnesses that the prosecution sought to call on the second day was a surprise substitute for a previously-identified witness, and then when the substitute arrived (from Afghanistan) it was discovered that he did not have the information the prosecution needed and a further substitute was required! These facts were just too much for CAAF, and Chief Judge Erdmann’s majority opinion excoriated “the government’s remarkably casual approach to witness production” and concluded that “any limitation on the government’s ability to present evidence was self-inflicted.”
In 2015 the Government’s self-inflicted wounds really piled up.
First, in the opening days of the year, the Judge Advocate General of the Air Force certified United States v. Bowser, 15-0289/AF (CAAFlog case page), to CAAF. Bowser involved sexual assault charges that were dismissed with prejudice after the Government refused to permit an in camera review of the prosecution team’s witness interview notes, and the Air Force CCA’s decision affirming the dismissal helped make the case our #10 military justice story of 2014. In 2015, upon receiving the certification and accompanying brief, CAAF rejected the brief because it failed to address possible controlling or adverse authority, and the court ordered the Government to “file an amended brief addressing the deficiency noted.” It then rejected the certified issue and affirmed the decision of the AFCCA in a summary disposition,
Next, the entire testimony of an alleged victim of sexual assault was stricken in the Army case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. May 28, 2015) (CAAFlog case page), because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. The military judge determined that the loss of the recording was not an intentional act but “was certainly negligent and may amount to gross negligence.” 73 M.J. 859, 861 (A. Ct. Crim. App. Aug. 26, 2014) (quoting record). CAAF affirmed the drastic remedy of striking all of the alleged victim’s testimony, applying the Jencks Act (18 U.S.C. § 3500) and the corollary Rule for Courts-Martial 914 with the explanation that “it would be an odd result indeed if the Government ultimately was rewarded for its own negligence.”
Then, a conviction for wrongful use of cocaine was reversed in the Navy case of United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. Jun. 8, 2015) (CAAFlog case page), because the Government failed to preserve the urine sample that was the sole evidence of the appellant’s drug use. CAAF found that such evidence is essential to a fair trial, applying Rule for Courts-Martial 703(f)(2) and rejecting the military judge’s constitutional due process analysis that had denied the appellant relief at trial. The court’s decision left the appellant convicted of only making a false official statement (she denied using drugs), and in an opinion on remand the NMCCA reassessed the sentence to just a one-grade reduction (resulting in the appellant’s restoration to duty with back pay and allowances).
Following that, the fruits of a search were declared inadmissible as a protective sweep in the Army case of United States v. Keefauver, 74 M.J. 230 (C.A.A.F. Jun. 12, 2015) (CAAFlog case page), because “the Government did not attempt to prove that the searching officer held either such belief [that the areas to be swept harbor one or more individuals and that the individual or individuals pose a danger to the agents or others], nor did it present facts and inferences that would objectively support either such belief.” On remand the ACCA added that the evidence also failed to support a finding that the discovery of the evidence was inevitable, leading to the complete reversal of the appellant’s convictions for wrongfully possessing drug paraphernalia and unregistered weapons on-post, wrongfully possessing marijuana, and child endangerment.
And then CAAF reversed the sexual assault conviction of a reserve Air Force officer in United States v. Nettles, 74 M.J. 289 (C.A.A.F. Jul 6, 2015) (CAAFlog case page), because the Government did not recall him to active duty when it had the opportunity and authorization to do so (resulting in his automatic discharge for failure of promotion in the reserves).
Finally, in its last decision of the September 2014 Term, CAAF found significant flaws in the prosecution’s handling of discovery involving the alleged sexual assault of a child in the Army case of United States v. Stellato, 74 M.J. 473 (C.A.A.F. Aug. 20., 2015) (CAAFlog case page). As a result the court affirmed the military judge’s ruling that dismissed the charges with prejudice.
It is unreasonable to expect absolute perfection from military prosecutors, of course, and there are important lessons that all military justice practitioners must learn from such mistakes. But these high-profile Government bloopers are deserving of special mention and their quantity and seriousness made them our #2 Military Justice Story of 2015.