Not surprised

Why am I not surprised by Issue III.  See one of my earlier blogs — The Prosecutor’s Gamble.  I’ve blogged several times about trial counsel “suppression” of evidence or information favorable to the defense, despite frequent public relations statements and appellate cases lauding the more open discovery to which a court-martial accused is entitled to under the UCMJ. 

The military justice system provides for broader discovery than required by practice in federal civilian criminal trials. See United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F. 1999).

Statutory and implemental regulatory discovery rights of a military accused are more generous than the constitutional discovery rights of his civilian counterpart. See, e.g., United States v. Simmons, 38 M.J. 376 (C.M.A. 1993); United States v. Green, 37 M.J. 88 (C.M.A. 1993); United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986).

Will not a judge or appellate court hold the government accountable, despite favorable government appellate rules of no prejudice and overwhelming evidence of guilt?  Perhaps Wood is a case where the appellate courts can make a stronger statement than ‘don’t do it again.’

I. WHETHER THE GOVERNMENT’S EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR RAPE WHERE,INTER ALIA, THE ALLEGED VICTIM TESTIFIED THAT SHE WAS NOT DRUNK BUT THE PROSECUTOR ARGUED IN CLOSING THAT SHE WAS ACTUALLY EXTREMELY DRUNK AND, THEREFORE, COULD NOT CONSENT.

II. WHETHER IN A PROSECUTION FOR RAPE, APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE GOVERNMENT ADVANCED MULTIPLE INCONSISTENT THEORIES PRIOR TO AND AT TRIAL: 1) THAT THE ALLEGED VICTIM WAS NOT INCAPACITATED AND DID NOT CONSENT; 2) THAT THE ALLEGED VICTIM WAS NOT DRUNK BUT WAS INCAPACITATED AS A RESULT OF BEING DRUGGED BY APPELLANT AND THEREFORE COULD NOT CONSENT; AND 3) THAT THE ALLEGED VICTIM WAS SO DRUNK THAT SHE WAS INCAPACITATED AND COULD NOT CONSENT.

III. WHETHER APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE PROSECUTION SUPPRESSED PHOTO AND TESTIMONIAL EVIDENCE FAVORABLE TO THE DEFENSE THAT WAS MATERIAL TO BOTH GUILT AND PUNISHMENT.

IV. WHEHTER THE GOVERNMENT’S EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR WRONGFULLY PROVIDING A PERSON UNDER THE AGE OF TWENTY-ONE AN ALCOHOLIC BEVERAGE.

Thanks to CAAFLog for catching this oral argument in United States v. Wood, at NMCCA.  See earlier posts:

Prosecutors still playing games with discovery.

Discovery issues.

Prosecution failure to provide credibility related discovery on their witnesses.

More on discovery.

Do military (DoD) lawyers know the meaning of “Brady material?”

The Prosecutor’s Gamble.

 

Discovery is not limited to matters within the scope of trial counsel’s personal knowledge. "The individual prosecutor has a duty to learn of any favorable evidence known to others acting on the Government’s behalf." United States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler v. Greene, 527 U.S. 263, 281, 144 L. Ed. 2d 286, 119 S. Ct. 1936 (1999)).  "Trial counsel must exercise due diligence in discovering [favorable evidence] not only in his possession but also in the possession . . . of other ‘military authorities’ and make them available for inspection." United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993). "The parameters of the review that must be undertaken outside the prosecutor’s own files will depend in any particular case on the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request." Williams, 50 M.J. at 441.

When requesting Production under R.C.M. 405(f), the standard can be considered, in my view, broader than at trial.  R.C.M. 405(f)(10) requires production of items, “within the control of military authorities.”  Here are a few relevant non-military cases.

United States v. Bailleux, 685 F.2d 1105, 1113 (9th Cir. 1982) (tape in custody of F.B.I. is deemed to be in custody of United States Attorney); United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980) (information in files of federal agency is deemed to be in possession of prosecution); United States v. Jackson, 780 F.2d 1305, 1308, n.2 (6th Cir. 1986) (F.B.I.’s knowledge is attributable to prosecutor); Martinez v. Wainwright, 621 F.2d 184, 186 (5th Cir. 1980) (rap sheet in medical examiner’s file is deemed in custody of prosecution).

Just exchange CID, OSI, NCIS, CGIS, for FBI, for this all too frequent objection by the Government Representative at an Article 32, UCMJ, hearing.  I’m at a loss to understand GR arguments that such items are “not available” within the meaning of R.C.M. 405(g) because they are with CID, OSI, NCIS, or CGIS.

From time to time the military judge will excuse the prosecution because of inexperience.  If the TC argues such or the military judge raises that, consider citing to United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).

In Smith v. Phillips, 455 U.S. 209, 219 (1982), the Court opined that “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Accordingly, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness. Id. at 220. In stressing assistant trial counsel’s inexperience and nervousness, as well as the unintentional nature of the assistant trial counsel’s errors, the military judge in this case misdirected some of his attention to the personal culpability of the prosecutor.

My, perhaps ancient at this point, recollection is that we were taught “discovery” at Naval Justice School, so it can be considered in the Military Justice 101 category.  I am not arguing that trial or defense counsel should never get the benefit of doubt as to accident, inexperience, or lack of intent when deciding performance issues that arise at trial.  I am arguing the way trial counsel mistakes are evaluated according to Thompkins.  What is the ultimate effect on the fairness of the trial.