Discovery, anew

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.]

But how many times does something similar to that of Behenna’s counsel happen in cases.  A witness or expert tells the prosecution something they don’t want to hear or tells the prosecution something helpful to the defense?  How many times does the prosecution transmit that information to the defense?  That’s what the Behenna case is about big-picture-wise.  The military judge could have granted a mistrial, but that remedy is very highly disfavored because it is such a drastic remedy; the military judge (or the convening authority) could have granted a new trial which seems a less drastic remedy.  See United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008).  In Webb the prosecution failed to disclose that the urinalysis observer had a prior Article 15 punishment and therefore had lied on his screening to be a urinalysis observer – goes to integrity and truthfulness.  AFCCA and CAAF agreed that the military judge had authority to hold a post-trial hearing and to order a new trial for this discovery violation.

The disclosure of Brady material is a self-executing duty which exists without the need for a request by the accused. See United States v. Agurs, 427 U.S. 97, 107 (1976); United States v. Webb.

The rule of Brady v. Maryland, 373 U.S. 83 , arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.

In the first situation, typified by Mooney v. Holohan, 294 U.S. 103 , the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury. . . . a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.

The second situation, illustrated by the Brady case itself, is characterized by a pretrial request for specific evidence. In that case defense counsel had requested the extrajudicial statements made by Brady’s accomplice, one Boblit. This Court held that the suppression of one of Boblit’s statements deprived Brady of due process, noting specifically that the statement had been requested and that it was “material.”

Agurs addressed the “third” area of discovery where there is no specific request for evidence.  United States v. Williams,  50 M.J. 436 (C.A.A.F. 1999), is a relevant military case.  In Williams the court identified three types of “files” to be searched.

(1) the files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses.

(2) investigative files in a related case maintained by an entity “closely aligned with the” prosecution.

(3) other files, as designated in a defense discovery request, that involved a specified type of information within a specified entity.

Impeachment evidence is Brady/Giglio material.  In my earlier posting about discovery I mentioned United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).  In Agurs, the Supreme Court took the Thompkins line:

Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Cf. Giglio v. United States, 405 U.S. 150, 154 .  (emphasis added).

Note that further in Agurs the HBRD standard is applied to the error.  Agurs, 427 U.S. at 112.  Keep in mind that unlike federal or state prosecutors, the trial counsel is bound also by Article 46, UCMJ, which is a guarantee of equal access to witnesses.

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 (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.

United States v. Jackson, 59 M.J. 330, 334 (C.A.A.F. 2004).  In Williams the court admonished:

The Supreme Court emphasized in Kyles v. Whitley, supra, that the prosecutor “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” 514 U.S. at 437 (emphasis added). As noted by the court below, “a prosecutor’s duty is not to win the case, but to ensure that justice is done.” 47 MJ at 625.

In the Behenna email the trial counsel says:

I received this email this evening.  I am not sure that I believe [D]r. MacDonald’s new opinion is exculpatory, but I wanted to send it to you in an abundance of caution.

There are indications that the “new opinion” was known and that was the reason Herb MacDonald was released as a government witness.  Dr. MacDonald says, “. . . I could not believe how close it was to the scenario I had described to you on Wednesday [before I heard the accused’s testimony].”  So, the indications are that he told the prosecutors that and got the, ‘thanks we don’t need you anymore,’ but not the, ‘before you go can you explain that same theory to the defense.’

“The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Kyles v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

Remember that discovery practice is not focused solely upon evidence admissible at trial.  See United States v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)(materiality standard normally “is not a heavy burden,” evidence is material as long as there is a strong indication that it will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.)(citations omitted); United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).

Ultimately the result in Behenna is going to come down to a “so what?”  Best case for the defense is that the testimony of Dr. MacDonnell (“inventor” or close to and guru of blood spatter and an early reconstructionist) would have given strong credible corroboration to Behenna’s testimony, that the judge would have admitted it, and that it could have affected the outcome.


Brady v. Maryland, 373 U.S. 83, 87 (1963) (due process violated where prosecution withholds information requested by defense that is material to the issue of guilt or sentence); United States v. Bagley, 473 U.S. 667, 678 (1985)(evidence that could be used to impeach a government witness is subject to discovery.)

Posted in:
Tagged: and

One response to “Discovery, anew”

  1. Butkus says:

    From my understanding, the TC also argued in closing there was no evidence to support the defense theory – even though she had that evidence. That is the most disconcerting.

    I’m also curious to see what ACCA does with the application of “self-defense” and the loss of self-defense instruction as applied to a combat zone.

Contact Information