In an unpublished, per curiam opinion in United States v. Castillejo, No. 20130507 (A. Ct. Crim. App. Jun. 20, 2016) (link to slip op.), a three-judge panel of the Army CCA reverses the appellant’s convictions of sexual assault and abusive sexual contact because:

During appellant’s trial the government played certain portions of the appellant’s interview with a U.S. Army Criminal Investigation Command (CID) Special Agent (SA). These excerpts were played for the panel without ever being admitted into evidence.

Slip op. at 2.

The defense did not object, but the CCA finds plain and obvious error, and prejudice:

Clearly the members were expected to consider the recording of the accused’s statement as evidence, and the only reason the members did not have access to the video during deliberations was due to technical insufficiencies in the government’s software. The substance of the video was likely highly prejudicial to the outcome of the trial. While it is not clear precisely what portions of the DVD were played before the panel, it is evident from the record that significant portions of the appellant’s interview with CID were played. This video was also referenced throughout the entire trial, and trial counsel referred to it as evidence for the panel to consider in its deliberations. Furthermore, despite acknowledging that the video statement was published to the panel but never admitted into evidence, the military judge gave no curative instruction to the panel. Accordingly, we cannot be reasonably confident that the accused was convicted on the basis of the evidence alone.

Slip op. at 4.

The CCA authorizes a rehearing.

5 Responses to “Trial counsel doesn’t admit the evidence, CCA doesn’t affirm the convictions”

  1. Former DC says:

    Id love to see Appellant’s brief.  Did he make a sufficiency claim? If so, the loss of this evidence makes the conviction factually insufficient, meaning no rehearing should be authorized, as it is double jeopardy. 

  2. Cloudesley Shovell says:

    Good question Former DC.  Perhaps the government, in the interests of justice and to forestall needless future trial and appellate litigation, could raise that question in a motion for rehearing.  Perhaps appellant could as well.  There are 12 appellate counsel listed on the brief, surely there is enough manpower available to churn out a motion.
     
    Pretty light sentence.  Only three months confinement.  The only real jeopardy at a second trial would be the BCD and sex offender registration.  It is a sexual assault case though, so there are dragons to be slayed. 
     
    Kind regards,
    CS

  3. (Former) ArmyTC says:

    Looks like this was a specified issue. Not raised by the accused. 

  4. Matt says:

    Pretty sad when such plain error is missed by the TC, the DC, the MJ, probably the COJ, and every Defense Appellate Attorney involved.  Good thing we have so many well-rounded attorneys who don’t specialize in litigation!

  5. Cheap Seats says:

    Why do you think sufficiency might kill this case?  Although the decision doesn’t mention it, the members must have heard from the victim in the case.  The suspect interview was the icing on the cake.  Even without the interview, there is still victim testimony (and perhaps other evidence).  The court could still find that the testimony was credible.  Now, whether members would is why the court sends it back for rehearing.  You know, dragons and all.