I’m encouraged, as occasionally I am

In the world of military justice it’s the small things that seem most encouraging at times.  So . . .  In my standard Article 32, UCMJ, production request (based on R.C.M. 405(f)(9)(10) primarily) or trial discovery demand one of the provisions is this:

3.  Declination to Produce or Disclose.

    a.  If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)).  Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review.  See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

    b.  If any information responsive to this request is not produced because it is unavailable: state with particularity the following.

        (1) Item sought.
        (2) Date requested from person or agency believed to be in possession.
        (3) Full name, address, telephone number, of each person contacted in order to obtain production.
        (4) Reason the item is unavailable.
        (5) Steps taken to locate and obtain the information.

You know how under Article 36, UCMJ, practice in courts-martial is supposed to be a close to that of the federal district courts as possible.

[Rules] which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

So for some strange reason I adopted the Vaughn “notice,” and expanded it a little.  Suggestions to improve always welcome.

Well, suffice it to say I’ve never had a trial counsel comply with my Vaughn notice request.  Oftentimes it’s the standard, “denied.”  It seems to me the Vaughn demand sorta encompasses some of the self-executing trial counsel obligations under Brady, Giglio, and Kyles.  You know, those items of discovery that the prosecution is supposed to actually look for and to provide regardless of R.C.M. 701.  (It is also my position that the trial counsel actually does have to go and look for those items.  And how many times are they required to actually look?  How many military judge ask, “did you look?”)  Well on the discovery issue it seems to me that the trial counsel could do themselves and the military judge a favor and respond to the Vaughn request.  Because if the issue gets litigated, isn’t the military judge going to question, or should question, the government along the lines of my Vaughn request?

Anyway, I was encouraged this week.  While docketing a case the military judge sua sponte told the trial counsel that any discovery denials should be specific and detailed, none of the usual blanket “denied.”  While the military judge did not list the Vaughn factors, my sense is that the military judge was attuned to the concept and may not be satisfied with the standard, “we don’t have it, we haven’t looked, and even if we did you can’t have it,” denial.

So, I am encouraged, albeit in a small way.