Court of Appeals for the Armed Forces--Tate

In Tate, the court reverses the Army Court.

During the first day of Appellant’s sentencing hearing, the court’s recording device failed, resulting in there being no verbatim transcript for most of the day’s proceedings. Although the Rules for Courts-Martial (R.C.M. or Rules) generally require the record of trial to “include a verbatim transcript of all sessions except sessions closed for deliberations” in serious cases—and impose consequences when that requirement cannot be satisfied—until 2019 the Rules did not authorize any remedial actions that a court could perform to cure a nonverbatim transcript. R.C.M. 1103(b)(2)(B), (f) (2016 ed.). 1 In the absence of any guidance from the Rules, military courts have long authorized three potential solutions when court recording devices fail: (1) declaring a mistrial; (2) reconstructing the record of trial; and (3) starting anew. In this case, the military judge stated that he was going to start Appellant’s sentencing hearing anew, but the record indicates that he neither started anew nor performed one of the other two judicially approved remedies.

​Contrary to his stated intent, the military judge indicated during the second sentencing hearing that he would only consider the testimony of the Government’s witnesses that fell within the scope of their unrecorded testimony from the previous day. His choice to disregard testimony from the second hearing if it went beyond the witnesses’ lost testimony from the first hearing resulted in a hybrid proceeding that did not start the proceedings anew but was instead dependent on—and intrinsically tied to—the unrecorded testimony from the first day of sentencing. Accordingly, we reverse the decision of the United States Army Court of Criminal Appeals (ACCA), set aside the sentence, and remand the case to the Judge Advocate General of the Army for return to an appropriate convening authority for action consistent with R.C.M. 1103(f) (2016 ed.).