Articles Posted in Discovery

Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system.  It seemed to work.

Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols, Texas Tech Law Review, Vol. 45, No. 1, 2012; Virginia Public Law and Legal Theory Research Paper, 2012-70. Available at SSRN: http://ssrn.com/abstract=2181301.  The author

argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials – notably judges, whose judgments depend on that process – should assume greater responsibility. The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date?  Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause.  See Calder v. Bull, 100 U.S. 1 (1798).

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Well, I use Wikipedia for research.  But, I use it “in some limited situations . . . for getting a sense of a term’s common usage."  Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011),   Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads”  The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").). 

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

I have for some time been challenging the limitation on the defense opportunity to get depositions.

The usual response is that a deposition isn’t for “good cause” because, according to the Discussion under R.C.M. 704, the witness “will be available at trial.”  I argue that R.C.M. 704 and the discussion are not procedure authorized by the President consistent with his Article 36, UCMJ, powers, but are substantive.  If it is substance, then it is beyond the Article 36 power.

Here is an interesting article on the federal rules which may help with my argument, we’ll see.

I posted the other day about discovery, the appellate courts are seeing a number of cases about discovery issues.  ACCA hears oral argument in the Behenna case which presents the question of trial counsel’s failure to comply with Brady/Bagley/Giglio/Article 46 in the context of a motion for mistrial and a motion for new trial.  As I have noted before, the biggest discovery issues are impeachment evidence and evidence that is favorable to the accused.  Trial counsel don’t seem to have much problem disclosing all the bad stuff against the client, it is the good stuff favorable to the client that becomes the issue.

In the Behenna case the defense was semi fortunate.

[Tip? if a prosecution witness is suddenly no longer a witness, call them and ask why.]

I have always taken the view that disclosure of bad information about witnesses is a self-executing duty on trial counsel.  I make this point because trial counsel often refuse to look into the background of it’s witnesses until the MJ orders that.

The military judge properly concluded the government “had an obligation to provide that CID report of investigation to the [d]efense, even absent a discovery request of any kind.” and thus violated its disclosure duties under the United States Constitution and the UCMJ.See UCMJ art. 46; Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004); R.C.M. 701.

I think ACCA agrees.

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. 

Now, don’t get discouraged when your being encouraged doesn’t work out.  Remember a primary court-room rule:  never let them see they’ve hurt you.  Not too long ago Judge Vowell was chief in the Army’s First Judicial Circuit.  One of her rules of court was that both counsel must comply with Federal Rule of Civil Procedure 26(a)(2).  Essentially she wanted a mini-brief on the experts.  Here is what she said on the record in a prior case:

MJ: I’ll tell you that in following – I learned from the judges who work for me each day, and one of them has taught me that – take a look at Federal Rule of Civil Procedure 26, I believe, dealing with expert witnesses.  Be prepared to file a notice as to what the witness’s qualifications are, and the basis for the testimony.  Basically, this is a preemptive strike at the Daubert/Kumho Tire  issues.

CDC: I’m happy to hear that, Judge, because you are the first judge who I’ve ever – in all the times I’ve said, ‘Let’s go to 26,’ I’m happy to comply.

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).

ACCA has issued an opinion in United States v. Trigueros, 68 M.J. ___ (A. Ct. Crim. App. 2010).  [Post updated to address a CAAFLog point, to add some links, and try to fix some formatting.]

This case involves the common problem of discovery of a victims mental health records.  There are two troubling aspects to this case:  the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of  Article 46, UCMJ, for them to fail to turn over the information.

On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.

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