AFCCA on a Art. 62 petition and witnesses

AFCCA issued an opinion in United States v. Rettinghouse today.  It was an Article 62, UCMJ, appeal, with some teaching points.

I note this issue arose because of – yes – trial counsel discovery violations, and then a refusal to accede to the judge’s remedy of producing witnesses for the defense.  See a post here.

I am informed that the issue of potential Brady material came up through an inadvertent disclosure at some sort of semi-official gathering at which the trial and defense counsel were present. I likened this method of disclosure as doing a reverse Ankeny.  That’s in reference to United States v. Ankeny, 28 M.J. 780 (N.M.C.M.R. 1989).  (Interestingly this case is another CAAF case cited in a federal habeas proceeding for a non-military accused.  See Nickely v. Hannigan, 869 F. Supp. 875 (D.C. Kan. 1994).    In Ankeny it was the defense who made the inadvertent disclosure to the prosecutor. 

It seemed to me that absent this inadvertent disclosure to Rettinghouse’s counsel that the information may not have become known to the defense counsel, sadly.  There is some indication that the trial counsel left it for the defense to find out.  The disclosure of some apparently inconsistent statements caused the defense to make a discovery motion.  I’m informed that once the defense got the interview notes that there was further information beyond that suspected which was also discoverable.  I think many of us would have also asked the judge to order a copy of the complete trial counsel and SJA files for in-camera review.

Bottom line:  information discovered by the prosecution in the course of interviewing witnesses that is or could be exculpatory is Brady material and should be disclosed, despite any claim of the information being work-product.  That is a constitutional duty imposed on the prosecution by the United States Supreme Court and various ethics rules.

There is lots of discussion about ‘new’ issues raised in the government’s petition.  But as observed to me this is the sole relevant discussion by the court on the validity of the abatement.

His order to produce the witnesses who could provide that testimony is not an abuse of discretion, and his order abating the proceedings for the government’s refusal to comply is in accord with R.C.M. 703.

If the government refuses to produce a witness as ordered by the military judge, the proceedings “shall be abated.” R.C.M. 703(c)(2)(D). Here, the military judge had previously ruled particular testimony relevant as impeachment. His order to produce the witnesses who could provide that testimony is not an abuse of discretion, and his order abating the proceedings for the government’s refusal to comply is in accord with R.C.M. 703.

A short simple statement on the issues properly before AFCCA.

One of the reasons that clients come to a civilian counsel is that they think the prosecution and defense counsel are too close, gossip with each other, and share too much information.  In this case the problem, fortunately, redounded to the defense benefit in exposing a, IMHO, deplorable constitutional violation.  The defense should read Ankeny.

A question now is will the government also ignore AFCCA’s decision.

A question, at what point does a prosecution refusal to abide by a military judge’s order become contumacious and/or frivolous?