I, currently, ask for the following as a minimal initial discovery request.
Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue. In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.
We can expand the initial request as more information comes to light. I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).
In my view, the MCIOs (and trial counsel) do not comply with the law–let’s use Roberts as an example.
During an interview with defense counsel prior to trial, the lead AFOSI agent, SA M, revealed that he had previously been disciplined, but declined to provide any details. Defense counsel subsequently requested that the Government provide the defense with copies of all disciplinary actions taken against SA M. A Government attorney-adviser at AFOSI replied in a memorandum that he had reviewed records including those maintained on SA M, and found no information that had to be disclosed. The attorney-adviser further stated that his review of the SA M investigation “did not reveal that SA [M] lied or falsely testified about the matter.”
Huuum. Well, the MJ did the right thing and conducted an in-camera review, but denied the discovery–wrong.
The military judge reviewed the records concerning the investigation of SA M in camera. The information provided to the military judge revealed that approximately three years before Roberts’ court-martial, while SA M was at a training course, he had sexual intercourse with another married AFOSI member.
The AFOSI investigative report of that incident contains a summary of an interview with SA M on February 13, 1997, in which he reportedly was given a rights advisement, and initially stated, “This is bullshit. There is no improper relationship,” before he stopped talking. SA M was subsequently given testimonial immunity and admitted to the intercourse with the married AFOSI member in a sworn statement. He was not criminally charged, but he did receive an Unfavorable Information File.
I ask you, how many of your clients have been prosecuted for this type of exchange during an interrogation? But that’s OK if an OSI agent. Don’t you wish your client could get the same break? I am continually surprised by the crimes MCIO agents commit and yet remain in the military and remain with the MCIO.
My suggestion is that Roberts controls and not Henthorn. Unlike federal courts, we have a broader discovery right despite the attempts of Congress, IMHO, to take away discovery mechanisms.