AFCCA Reverses Drug Conviction

This is an odd case for me to write about, because I was the counsel at trial, and we lost. But, because

we properly preserved issues for appeal, the conviction was overturned on appeal.


Sr. A Barbara Thomas was convicted of two specifications of drug use. Most of the evidence against her

was from two co-accused, one of whom had become a snitch for OSI in exchange for a very light

punishment.  As the Air Force Court of Criminal Appeals wrote “To put it mildly, their testimony was

riddled with internal inconsistencies and discrepancies.  Establishing proof beyond a reasonable doubt

based solely on these witnesses’ accounts would have been a daunting challenge.”


The issue on appeal was the government’s use of cell phone “extraction reports” of text messages

purportedly from SrA Thomas.  We objected to the admission of these exhibits at trial as the

government did not have anyone who could “authenticate” them.  The only witness the government

called was an OSI Special Agent who said she got the reports from another agent, and they looked like

other reports she had used in the past. There was no link to our client, and whoever conducted the

extraction did not testify.  To our shock, the military judge overruled our objection and allowed these

reports into evidence.  We also objected on the grounds that we were not afforded the

opportunity to confront the witness who actually conducted the extraction.


On appeal, the AFCCA held that the admission of the reports was error, and that the error prejudiced

our client.  The court then tested for prejudice. Based on the overall weakness of the government’s case,

the court reversed the conviction.  This case points out several things: An experienced court martial

attorney will make sure that all objections are made on the record, so as to “preserve” the issues for

appeal. If an objection is not made, it is much more difficult (if not impossible) to get the court to rule in

your favor.  It also points out the need for zealous court-martial appeals advocacy. I give kudos to her

appeals lawyers for doing such a great job.  The client is thrilled that she can now go back and get a

second lease on life.


Link to opinion:


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