About two months ago, in this post, Phil discussed the Army CCA’s decision that rejected a Government interlocutory appeal in United States v. Muwwakkil, 73 M.J. 859, No. 20140536 (A. Ct. Crim. App. Aug. 26, 2014) (link to unpub. op.). The appeal was of a military judge’s ruling that stuck the entire testimony of an alleged victim of rape. The military judge struck the testimony because the Government lost the recording of the alleged victim’s testimony at the Article 32 pretrial investigation. Affirming the judge, the CCA reasoned:
The government concedes simple negligence for the loss of the recording, but contends that any finding of gross negligence is clearly erroneous. However, as the government correctly points out, the judge never did make a clear finding of gross negligence. In any event, the judge’s finding that the government’s loss of the required statement was due to its negligence is amply supported by evidence in the record and necessarily triggers the totality of circumstances test described above to determine an appropriate remedy for the Jencks Act violation.
There is no evidence that the government destroyed the statement in “good faith” or was otherwise blameless in its destruction. See, e.g., Carrasco, 537 F.2d at 376; Lewis, 38 M.J. at 508 (citing Jarrie, 5 M.J. at 195). Beyond that, the government simply disagrees with the judge’s exercise of her discretion as to the proper remedy. Any disagreement any of us might have with the judge’s exercise of discretion under these circumstances is no basis for relief under Article 62. See Baker, 70 M.J. at 288 (“[T]he question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are ‘fairly supported by the record.’”) (citation omitted). Indeed the law demands that we respect and defend the reasoned exercise of a trial judge’s discretion in cases such as these and so we do here.
Slip op. at 6-7.
Last Monday, October 20, the Judge Advocate General of the Army certified the case to CAAF:
No. 15-0112/AR. U.S. v. Tahir L. MUWWAKKIL. CCA 20140536. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief were filed under Rule 22, together with a motion to stay the proceedings on this 20th day of October, 2014, on the following issues:
I. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN ITS APPLICATION OF BOTH THE FEDERAL JENCKS ACT (18 U.S.C. § 3500) AND RULE FOR COURTS-MARTIAL 914.
II. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN ITS DEFERENCE TO THE MILITARY JUDGE’S FINDINGS AND CONCLUSIONS, AS SHE FAILED TO CONSIDER THE TOTALITY OF THE CASE, AND INSTEAD MADE A PRESUMPTION OF HARM BEFORE ORDERING AN EXTRAORDINARY REMEDY. SEE, e.g., KILLIAN v. UNITED STATES, 368 U.S. 231 (1961).
On consideration thereof, it is ordered that the motion to stay proceedings is hereby granted. Appellee will file an answer to the certified issues under Rule 22(b)(1) on or before October 30, 2014
While this is an interesting case on its own facts, the second certified issue is really interesting because it seems to be an attempt to reach outside the normal abuse of discretion standard that CAAF employs when it reviews the underlying ruling of the military judge in an interlocutory appeal. See United States v. Wicks, 73 M.J. 93, __, slip op. at 10-11 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page) (“In an Article 62, UCMJ, petition, this Court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the prevailing party at trial. . .”).
As for the Government’s concern about a presumption of harm, I’ll be interested to see how CAAF applies United States v. Jarrie, 5 M.J. 193, 195 (C.M.A. 1978) (“It suffices to say that, in the present case, the requested materials were not preserved for the record as required by 18 U.S.C s 3500(c) . This factor alone distinguishes it from those cases cited by the Court of Military Review as support for the application of the harmless error rule.”)