Opinion Analysis: The destruction of a urine sample essential to a fair trial leads to reversal in United States v. Simmermacher, No. 14-0744/NA
CAAF decided the Navy case of United States v. Simmermacher, 74 M.J. 196, No. 14-0744/NA (CAAFlog case page) (link to slip op.), on Monday, June 8, 2015. Holding that the appellant’s urine sample was of such central importance that it was essential to a fair trial, that there was no adequate substitute for the sample after it was destroyed by the Government, and that the appellant was blameless in its destruction, CAAF applies R.C.M. 703(f)(2) and reverses the appellant’s conviction.
Judge Erdmann writes for a unanimous court.
The 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.
The appellant’s positive urinalysis was the result of a routine random testing 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. Instead, the sample was destroyed twelve days before the appellant was charged with the drug offense. The military judge then denied a defense motion to suppress the results of the urinalysis, instead giving the members an instruction that they may (but are not required to) infer that the evidence would have been adverse to the prosecution. Appellant was convicted and the NMCCA affirmed. CAAF then granted review of a single issue:
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?
Drawing a bright line between the constitutional due process standard for lost or destroyed evidence and the provisions of R.C.M. 703(f)(2), Judge Erdmann explains that where the three prerequisites under R.C.M. 703(f)(2) are satisfied, “if a continuance or other relief cannot produce the missing evidence, [then] the remaining remedy for a violation of R.C.M. 703(f)(2) is abatement of the proceedings.” Slip op. at 14. Because the military judge failed to abate the proceedings in this case, CAAF reverses the finding of guilty and dismisses the charge of violation of Article 112a.