A prosecutor’s duty to disclose

In United States v. Brickey,

[The court] granted review out of concern for the conduct of trial counsel in withholding from the defense certain information impacting upon both the credibility and the competence of a key prosecution witness to the offenses charged. After careful examination of the record and full consideration of the well-argued positions of the parties, we conclude that it was improper for trial counsel not to divulge this information and that the failure of trial counsel to bring this information to the attention of opposing counsel prejudiced appellant’s defense. Reversal of the convictions is therefore required.

United States v. Brickey, 16 M.J. 258 259 (C.M.A. 1983).

It appears the sole witness to the allegations had been admitted for a mental health evaluation. The treating personnel opined that “he was lucid, not suffering from amnesia, and able to understand right from wrong and adhere to the right. He felt that PV2 Brown was competent to testify in a court-martial proceeding and that in fact PV2 Timothy Brown had been released from the center and was enroute to Korea to testify.”

Trial counsel did not tell the defense about anything relating to the mental health status of the witness, that was discovered after trial.

During trial the witness’s deposition was used.

During his deposition, Brown was asked by defense counsel why he had gone to the police in the first place. He responded, “I knew what he was doing was wrong.” He explained that he used to sell “pot” — though not the kind of drugs with which appellant allegedly was involved — but that he had had a conversion experience: specifically, he had heard that a little girl he had known had overdosed “because of the same thing.” Now withstanding the implications that he had not been involved in anything harder than “pot” and that as a result of the girl’s overdose he had come clean at some point prior to appellant’s offenses, trial counsel still failed to reveal what she had learned of Brown’s problems at Fort Lewis only one month earlier.

16 M.J. at 260.

So, Brickey is a Brady-plus case.

The CMA (CAAF) discussed the issue in that context.

Beyond all this, we believe that the first Brady situation also is present in this case. That situation, typified by Mooney v. Holohan, supra, exists when “the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” United States v. Agurs, supra at 103, 96 S. Ct. at 2397 (footnote omitted).

16 M.J. at 268.

The CMA determined the information should have been disclosed, set-aside the findings and sentence, and authorized a rehearing:  because “we are convinced a reasonable likelihood existed that the findings by the members of the court-martial were adversely affected by trial counsel’s failure to set the record straight.”

In a petition now pending before the U.S. Supreme Court, the issue presented is,

Whether the due process clause excuses the government’s knowing use of false testimony in a criminal prosecution so long as the government divulged evidence during discovery indicating that the testimony was false.

More can be found at SCOTUSBlog about Stein v. United States.


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