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.

In a retrial of a premeditated murder case, we must decide whether the government’s failure to disclose impeachment information about the lead United States Army Criminal Investigation Command (CID) agent was harmless beyond a reasonable doubt.  We strongly condemn the government’s tactics in this case and remind practitioners that gamesmanship can play no part in the discovery process in the military justice system.

United States v. Dobson, ARMY 20000098, 2010 CCA LEXIS 86 (A. Ct. Crim. App. 2010).

In its 19 October 2006 written response to the defense request, the government stated, “Special Agent [JR] is currently being investigated for misconduct. . . . MAJ S was unsure whether the amount alleged to have been stolen was $50,000 or $500,000 and was further unsure what charges the government planned to prefer against SA JR. . . . Neither MAJ S nor any other government agent ever disclosed to the defense that SA JR was also under investigation for fraud. . . . On 13 March 2007, one week after appellant’s court-martial concluded, the government preferred numerous charges against SA JR, including dereliction of duty, larceny, fraud, and fraternization. On 30 May 2007, the defense filed a motion for a mistrial.

Interesting timing, and here’s an interesting comment on the government’s integrity.

the military judge found although government counsel “testified to the contrary,” the government made a “tactical decision not to prefer charges against [SA JR] prior to Dobson II . . . because of the potential impact preferral would have on [SA JR] as a witness in Dobson II.”

So trial counsel wasn’t being straight with the judge.  But then:

Despite the military judge’s finding that the government made a “tactical decision” as to when to prefer charges against SA JR, the military judge “cho[se] to believe and [found]” the government’s actions in this case were not intentionally designed to “conceal” the CID investigation from the Dobson defense team. Instead, the military judge found the government’s actions in “holding the CID investigation unless there was a specific request for it, . . . keeping the trial counsel in Dobson II in the dark as to [the existence of the CID investigation], and not preferring charges against [SA JR] until after Dobson II” were “borne from the [g]overnment’s significant misunderstanding of discovery rules and obligations.”  (Emphasis added.)

OK, now let’s keep in mind this was 2006.  So I don’t buy the lack of understanding of knowledge about discovery obligations.  The TJAGSA, NJS, etc., have been in business a while.  If this were in the 1950’s, or at least prior to Brady and Giglio . . .  Everyone gets discovery 101 at initial training, and there’s plenty of access to the rules and caselaw these days.  Judge Ham concludes:

While we defer to the military judge’s evaluation of the witnesses’ credibility and his finding that the government’s violation of discovery rules was not deliberate, but rather ignorant, neither is tolerable. Hiding the ball and “gamesmanship” have no place in our open system of discovery. See United States v. Adens, 56 M.J. 724, 731 (C.A.A.F. 2002) (broad discovery at an early stage reduces pretrial motions, surprise, and trial delays . . . leads to better informed judgments about the merits of the cases and encourages broad early decisions concerning withdrawal of the case, motions, pleas, and composition of the court-martial—in short its practice “is essential to the administration of justice . . .”); United States v. Dancy, 38 M.J. 1, 5 n.3 (C.M.A. 1993) (explaining the “unfortunate consequences of a trial counsel’s disregard for the discovery rights of an accused”); United States v. Lawrence, 19 M.J. 609, 614 (A.C.M.R. 1984).  Despite our holding in this case, we reiterate that all counsel must be competent. Ignorance or misunderstanding of basic, longstanding, and in this case, fundamental, constitutionally-based discovery and disclosure rules by counsel undermines the adversarial process and is inexcusable in the military justice system.  (Emphasis added.)

Unless the error is harmless beyond reasonable doubt.  Which fortunately for the government was apparent in this case.

Another point I make from time to time comes from United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003); and this arises in the context of trial counsel knowledge and experience as alluded to in Dobson.  When the prosecution or the MJ want to let the government get away with something because it was due to inexperience or lack of knowledge the question is not whether that inexperience or lack of knowledge is to be excused but whether there is an adverse impact on this accused’s trial.

Defense counsel moved for a mistrial under Rule for CourtsMartial 915.  The prosecution opposed the motion, stating that the assistant trial counsel’s actions were “due to inexperience and probably a lack of guidance” but were not deliberate.  Defense counsel argued that the issue on the motion for mistrial
was prejudice, rather than whether the actions were innocent or willful.

Note the chronology in this case.  The MJ excludes testimony or evidence, the prosecution brings it up, the defense objects and asks for a mistrial, and the prosecution does it again.

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.

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