On 8 June 2015, the Court of Appeals for the Armed Forces (CAAF) in United States v. Simmermacher, reversed a drug conviction because the government destroyed the evidence too soon. The appellant’s positive urinalysis was secured through routine random testing. The government allowed the sample to be destroyed 12 days before the appellant was charged with the offense. The government was supposed to hold onto the sample beyond a year so that it could be available for retesting. During the court-martial, defense made a motion to suppress the results of the urinalysis, however, the military judge denied the motion. The appellant was convicted of the drug charge and the Navy-Marine Court of Criminal Appeals affirmed the conviction. CAAF reviewed the case in light of the Rules for Courts-Martial (R.C.M.) 703(f)(2). In accordance with R.C.M. 703(f)(2), if a continuance or other relief cannot produce the missing evidence, then the military judge is required to abate the court-martial proceedings. Therefore, CAAF held that the military judge erred in not abating the proceedings in this case. CAAF overturned appellant’s conviction for the drug charge. In February 2014, I posted a blog about this very topic when it occurred in an Air Force appeal. In February 2014, the Air Force Court of Criminal Appeals (AFCCA) in United States v. Seton upheld a military judge’s decision to dismiss a case with prejudice when the government lost a piece of key evidence. The key evidence in the case was a video surveillance tape that taped events occurring in an Air Force dormitory. Airman First Class (A1C) Seton was accused of sexually assaulting a female A1C. The female stated that she had consensual sexual intercourse with A1C Seton, but that the last 30 to 90 seconds of the five to ten minute long intercourse was non-consensual because she told him that she didn’t want to have intercourse immediately prior to those last seconds. The video surveillance tape contained evidence that may have contradicted her testimony. The government, however, failed to keep the evidence and allowed it to be erased, most likely by accident. Unlike the military judge in Simmermacher, the military judge in Seton correctly ruled that the government’s failure to maintain the evidence violated Rules for Courts Martial (R.C.M.) 703 (f) because this evidence was essential to a fair trial. Therefore, the military judge dismissed the case with prejudice. “With prejudice” means that A1C Seton may not be tried for this offense again at a court-martial. The government appealed, but the AFCCA upheld the ruling. The AFCCA held that testimony was just not enough to serve as a substitute for the evidence that was on the video. If you are facing a court-martial, there may be essential evidence in your case as well. The appellate courts have shown that they will rule in an appellant’s favor when the government fails to keep essential evidence. You need an advocate by your side who has the experience to know what to ask for, how to address these types of issues at your court-martial, how to preserve issues for appeal and finally how to represent you at an appeal if necessary. I have that experience. To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.