In United States v. Smith, No. 201400400 (N-M. Ct. Crim. App. Feb. 10, 2015) (per curiam) (link to slip op.), the NMCCA grants a Government interlocutory appeal of a military judge’s ruling that dismissed some of the charges with prejudice as a remedy for the Government’s loss of an apparently exculpatory surveillance video recordings of the following alleged incidents:

The appellee was a military police patrol supervisor. Lance Corporal (LCpl) JK4 was one of his subordinates and stood watch in the lobby of a secure law enforcement facility known as MDIA. On 28 October 2013, the appellee stopped at the lobby while LCpl JK, Cpl Pelligrino, and Cpl Toner were on duty. While there, the appellee is alleged to have approached the front desk, picked up a bottle of hand sanitizer, pointed it at LCpl JK and squirted some of the contents onto her shoulder, stating “Oops, just splooged on you.” This allegation, in part, formed the basis for sexual harassment and maltreatment charges against the appellee.

On 11 November 2013, the appellee arrived to conduct his rounds at the MDIA lobby. In the presence of Cpl Toner and LCpl JK, the appellee is alleged to have been unable to properly open a door and to have fallen asleep on the desk. This conduct forms the basis of a dereliction of duty charge against the appellee.

Slip op. at 2-3. The facility in which the appellee worked was under video surveillance. The video was reviewed by personnel who stated that the video “is not showing that someone approaching the front desk squirted hand sanitizer on any of the officers” and that the reviewer “did not see the appellee have difficulty opening the door.” Slip op. at 3. However, the video recordings were not preserved, and were destroyed after 30 days.

Independently of the video evidence, the appellee was interrogated and “admitted that he had ‘accidentally squirted’ hand sanitizer on JK and said ‘oops, just splooged on you.'” Slip op. at 4.

The defense moved to dismiss because of the Government’s failure to preserve the video recordings. The military judge found that the lost video recordings were “relevant, necessary, and essential to a fair trial” both for factual and impeachment purposes. Slip op. at 4. Then, in a ruling reminiscent of the Air Force case of United States v. Seton, Misc. Dkt. No. 2013-27 (A.F. Ct. Crim. App. Feb. 24, 2014) (discussed here), aff’d, 73 M.J. 346 (C.A.A.F. May 12, 2014) (summary disposition) (discussed here), the military judge dismissed the affected charges with prejudice. The Government appealed.

The NMCCA grants the Government appeal, but not because it agrees with the Government that the destruction of the video does not require the remedy of dismissal with prejudice. Rather, the CCA finds that the judge’s analysis of the issue was incomplete:

The military judge entered incomplete findings which lead to inadequate analysis. First, he failed to recognize the appellee’s admission and omitted any analysis of what impact that it would have on the importance of the destroyed evidence. Moreover, he overlooked findings on the totality and quality of Ms. Bullard’s [the woman who reviewed the video -zds] testimony and omitted any analysis on whether that testimony would provide an adequate substitute for the destroyed footage. The lack of these necessary findings and analysis constrains our ability to adequately determine if the military judge abused his discretion in dismissing the specifications. In light of these incomplete findings, the appropriate remedy is a remand for additional findings and analysis. Kosek, 41 M.J. at 64.

Slip op. at 8.

Notably, the alleged victim’s appointed Victims Legal Counsel also sought to be heard:

On 20 January 2015, Victim’s Legal Counsel representing Corporal (Cpl) JK filed a Petition for Extraordinary Relief in the Form of a Writ of Mandamus with the court pursuant to the All Writs Act. The petitioner seeks a “Stay until this Court rules on this Petition and Petitioner seeks a Writ of Mandamus setting aside the Trial Court’s rulings of October 14, 2014, under RCM 703, and directing the Military Judge to treat Cpl JK with fairness and respect for her dignity pursuant to 10 U.S.C. § 806(b) by providing her an opportunity to “be heard” prior to ruling on the defense motion to dismiss all charges and specifications.

Slip op. at 2. The CCA’s opinion does not address this petition, and its remand presumably moots the issue (for now).

14 Responses to “NMCCA grants Article 62 appeal over missing video recording”

  1. stewie says:

    I don’t see anything in Article 6(b) that says the AV gets a right to be heard on this issue, and treating with fairness and dignity does not mean she gets to be heard on anything she wants.
    Does this mean a right to be heard is now going to be argued wrt a 917 motion? A failure to state an offense motion? Anything that results in dismissal of the charges? 

  2. RY says:

    agree, Stewie. So anytime an AV thinks the TC left out an argument or is not doing well or if the AV wants to re-emphase a point or just voice disagreement with anything that is not to her satisfaction, the trial process should come to a stop so she can say so even if it is not an MRE 412 or MRE 513 issue?  If so, we might as well start using three parties in the naming of at case

  3. DCGoneGalt says:

    Stewie and RY:  Why not make it three parties on every issue?  It is the logical end of a series of stupid decisions.  Who in Congress or DOD leadership has the combination of spine and common sense to say “enough, this has become insane”?

  4. NM says:

    Last trial I did the SVC filed motions in limine to prevent me from asking certain questions.  Essentially, a motion in limine is an objection raised before trial.  Ergo, why not also allow them to stand up from the gallery and make objections during the trial?  Deliver a closing argument?  I think the only reasonable answer is to limit the SVC’s right to be heard to the instances specifically granted to them by statute.  A broad interpretation of the right will absolutely lead to problems…

  5. LJ says:

    These SVC practices should be looked at by state bars.  It is unethical for a defense attorney to file a frivolous motion.  SVCs should not get away with it either.  They are not parties to the litigation, and do not have any rights except for those explicitly provided by statute.  They are improperly interfering with a court-martial and should be disciplined.

  6. stewie says:

    I wouldn’t go that far…many SVC are newish counsel and they are just doing what they think is zealous with perhaps not full oversight (or at least uneven oversight partly caused by the limits not yet being established for a new system).MJs should shut this stuff down quickly though…as should the courts.

  7. Advocaat says:

    It looks like the MJ made a results-driven ruling (and one that I agree with) for charges that never, ever should have seen the inside of a courtroom and that NMCCA is clueless for not letting this case fizzle out.  I don’t have a problem with the VLC’s actions because the military deserves every ridiculous motion it gets from spawning an absurd program that has no adult supervision, to wit: the fact there is a VLC in the first place for these allegations.

  8. k fischer says:

    Direct result from public law 113-66, Sections 1751-52.  Disqualify the Convening authority.  Does anyone else that there is something afoot in which TJAGs are ordering cases go forward that are so completely ridiculous in hopes that Congress will leave the military alone. 

  9. ExTC says:

    Anyone ever file a motion that since SVCs file motions and argue et al, that they and their client are party opponents, and thus all their statements are statements of a party opponent, admissible akin to the accused? At some point they are a party.

  10. Phil Cave says:

    1.  Yes, I have sucessfully argued that the SVC comments in a 412 motion are admissions of a party opponent.  The MJ agreed!  But it was an acquittal so you won’t see it reported.  You should as a matter of habit consider this in all cases.  Whether all MJ’s will agree is a different matter.  (Also the MJ wasn’t Kastenberg.).
    2.  I’m told Army SVCs are filing amicus on just about everything.  That may be an overstatement, but that’s the gossip.  Specifically they did that in Schloff.  I objected, ACCA granted amicus.  A reasonable reading of the Gov and SVC briefs before ACCA would have you wondering who cut and pasted who.  What it is was merely a plea to reverse the MJ on a 62 appeal.
    So when we filed at CAAF the SVC also filed an amicus.  To which I have filed a motion in objection or to quash.  This is still pending.  However, you can read someone else’s view of the pleadings at this link.
    (Note, I’m Schloff’s trial and appellate lawyer so I’ll say no more.  It’s of record, and I’d rather keep my thoughts to myself because they might not go over well.)

  11. Zeke says:

    stewie said:

    Does this mean a right to be heard is now going to be argued wrt a 917 motion? A failure to state an offense motion? Anything that results in dismissal of the charges?  

    I think it would first require the President to engage in rulemaking, or Congress to engage in lawmaking.  There would need to be a rule or law specifically giving a victim the right to be heard before a dismissal ruling.  I don’t think there are any plans in place to create any such rule or law, at least not yet.  My reading of LRM, specifically at 72 MJ 369-70, is that the victim (or his counsel) only has a right to be heard where the President or Congress have given that right explicitly.  We just need trial and appellate courts to start applying that LRM precedent – and denying motions to submit an amicus briefs from SVCs where the law does not provide them a right to be heard.

  12. RKincaid3 (RK3PO) says:

    Sigh….SVC =”Special VENGEANCE Counsel.”  
    Thanks, Air Force, for creating that monster and double thanks to the military appellate courts who–for what can only be described as political reasons in a rancid, politically toxic and utterly leaderless environment sustained that ridiculous AF plan despite a clear lack of legislative authority–which then gave congress the great idea to codify it in subsequent NDAA amendments (hmmm…after-the-fact statutory codification of the plan is pretty good evidence–canons of statutory construction-wise, that the courts were wrong in sustaining the AF plan).  In no other court system is a “victim” anything BUT a witness to a dispute between two parties–the government and the accused.  Simply unconscionable that we now have WWE-style Tag Teaming going on. 
    Way to un-cage the kangaroo that is anathema to every just adjudication of an issue in what is supposed to be a court of justice blind to all but the law and facts, folks! 

  13. Dew_Process says:

    Phil, can you post a link to the government’s response in Schloff regarding the Amicus by the SVC?  That would appear to be an “admission by a party-opponent.”  See, e.g., U.S. v. GAF Corp., 928 F.2d 1253 (2nd Cir. 1991) [BOP held to be an “admission” by the government].

  14. Phil Cave says:

    DP, I see we have been thinking along similar lines on how a SVC statements and or litigation can be used against the CW and the Gubmint – possibly for impeachment or to limit evidence.  I stopped whining about this stuff too much and have been using my time on how this can be something in the toolbox.  To quote Gunny Hightower, “adapt and overcome.”  This would also apply should the CW testify on a motion. Thanks for GAF; some meat here.