Bungled trial transcript brings reduced sentence in military case

McClatchy Washington BureauAugust 12, 2014 

— This is a weird one. A bungled trial trancript means a reduced sentence, at least after the fact, for former Army Sgt. 1st Class Calvin J. Davenport, who was convicted of conspiracy, extortion and bribery.

In a decision that underscores the at-times unique nature of the military justice system, the U.S. Court of Appeals for the Armed Forces on Monday ordered a resentencing for Davenport. The reason: the trial transcript originally forwarded to the Army Court of Criminal Appeals omitted the testimony of a government witness.

“The facts in this case are novel,” Chief Judge James E. Baker noted in dissent, “and hopefully will not be repeated.

Under the Uniform Code of Military Justice, a trial transcript must be both “verbatim” and “complete.” If it’s not, a sentence can be no longer than six months or a punitive discharge.

Davenport, though, had been tried in 2008 and sentenced to two years, along with a bad conduct discharge, for his part in a conspiracy dating back to his service in 2007 at Forward Operating Base (FOB) Rustamiyah, Iraq. The convening authority later reduced the sentence to one year.

The conspiracy itself was a tawdry affair.

Davenport and his partners required each employee at the base’s barbershop and hair salon to pay them $300.00 a month, and threatened loss of employment and removal from the FOB if the employee refused, the court recounted. Davenport and a partner “also used their position of power to affect cable and Internet services on the FOB by negotiating with Netgate, a cable and Internet provider, for the company to pay them $30,000.00 in exchange for operating on the FOB,” Judge Margaret A. Ryan wrote.

Although the court reporter recorded the testimony of the witness at question, at some point after the case concluded the computer on which the court reporter recorded the testimony was reimaged. A special hearing was held three years later to try to reconstruct the omitted testimony, but the appellate court said that wasn’t sufficient.

“The omission of the testimony of an entire merits witness is almost necessarily substantial where, as here, the content of the testimony is equivocal even after attempts to reconstruct it at a DuBay hearing,” Ryan wrote.

Army Captain Brian D. Andes represented Davenport on appeal.

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