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AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

Formal Opinion 09-454 July 8, 2009

Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense Rule 3.8(d) of the Model Rules of Professional Conduct requires a prosecutor to “make timely disclosure to the defense.

This ethical opinion reinforces the rule that the prosecutors obligation to disclose certain types of information to the defense is self-executing – that is Brady, Kyles, Giglio, and similar material must be disclosed even though the defense has not submitted a formal discovery request — and goes beyond what the R.C.M. and appellate decisions say.  So, for example, a prosecutor has an ethical duty to disclose certain information she learns during pretrial interviews of prosecution witnesses.

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Here is an interesting case from the 9th Circuit on computer searches.  There may be some applicability here to military computer searches.  The opinion is written by the well respected Judge Kosinski.

CA9: Balco en banc: Computer search under Tamura not an excuse for a plain view; there has to be limits

The Ninth Circuit in Balco en banc (panel opinion: United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085 (9th Cir. 2008)) determines that seized computer information needs limits under the “venerable” pre-“information age” Tamura case (United States v. Tamura, 694 F.2d 591 (9th Cir. 1982)). This is a remarkable effort at keeping computer searches from becoming general searches or excuses for plain view inside the hard drive. United States v. Comprehensive Drug Testing, Inc., No. 05-10067 (9th Cir. August 26, 2009) (by Kosinski, J.

Here is the start of some commentary by Volokh about limits on fishing surfing expeditions.

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There is an ongoing dispute about whether DoD is screening reporters who are allowed to embed in Afghanistan.  The allegation is that there is or will be a preference for those who give favorable reports about the military.  Here is the latest (as usual the DoD is at stage one – complete denial, stand-by for correction blaming a miscommunication or low-level employee).

Files prove Pentagon is profiling reporters

Stars and Stripes
Mideast edition, August 27, 2009

WASHINGTON — Contrary to the insistence of Pentagon officials this week that they are not rating the work of reporters covering U.S. forces in Afghanistan, Stars and Stripes has obtained documents that prove that reporters’ coverage is being graded as “positive,” “neutral” or “negative.”

Moreover, the documents — recent confidential profiles of the work of individual reporters prepared by a Pentagon contractor — indicate that the ratings are intended to help Pentagon image-makers manipulate the types of stories that reporters produce while they are embedded with U.S. troops in Afghanistan.

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SOR seems to be a current topic, here is a new post from Prof. Yung:

Another Free Exercise of Religion Issue for a Sex Offender

These days, sex offenders can’t even go to church in some areas. Not long ago the State of Georgia enacted a law prohibiting sex offenders from volunteering at church. Now a North Carolina sex offender is fighting for the right to attend church, albeit one that also maintains a day-care center.

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“Defending Those Who Defend America”: Avoiding Conflicts of Interest in Order to Provide an Ethical and Effective Defense

Sex Offender Registration Laws and the Uniform Code of Military Justice: A Primer

I follow SOR issues very closely for current clients, past clients, and the all too frequent new client.

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Father: Convicted GI poisoned himself before surrendering

By Seth Robbins, Stars and Stripes
Online Edition, Tuesday, August 25, 2009

A Special Forces soldier who was on the run for nearly two days following a court-martial conviction poisoned himself before surrendering to police, his father told Stars and Stripes on Tuesday.

“He may or may not live,” said John Stewart, who said he was heading to an airport to board a plane from Nebraska to be at his son’s bedside. “He is in the ICU (intensive care unit) and there appears to be some major organ damage, particularly to his kidneys.”

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ACCA has issued a Memorandum Opinion in United States v. Markis, ARMY 20070580 (A. Ct. Crim. App. 18 August 2009).

Appellant had given three pre-trial admissions to CID.  The defense sought to exclude the confessions as being coerced.  The military judge permitted the defense to present expert testimony on coerced confessions, specifically it appears how the Reid Technique may lead to coerced confessions.  However, the military judge refused to allow the defense to ask hypothetical questions unless the defense first asked for an Article 39(a), UCMJ, session to get a ruling.  It appears that the defense did not seek to ask a hypothetical and did not ask for an Article 39(a) once the prosecution witnesses had testified and they had laid a sufficient foundation to get to the point where a hypothetical might be offered.

The opinion has a nice little review of what you must do, by way of proffer, to preserve an objection.

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SAUSA an interesting piece from Volokh which I posted the other day.

It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, United States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004), United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir. 2002), but the prosecutors here did just that. One prosecutor asked: “You’re saying that [they’re] going on the stand, swearing an oath to testify to the truth and then lying . . . ?” He even pitted his own credibility against Harrison’s, asking, “So I’m in the conspiracy against you, is that right?” These were not isolated incidents: Improper questioning was an organizational theme
for the prosecutor’s entire cross-examination.

The vouching was similarly patent. The government was entitled to rebut Harrison’s suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted “with no adverse action whatsoever” after an internal military investigation. This clearly “suggest[ed] that information not presented to the jury,” but available to the investigators, supported the officers’ testimony.  United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). And it would be hard to find a clearer case of “placing the prestige of the government behind a witness,” id., than the prosecutor’s statement that the “[g]overnment stands behind” Officers Jenkins and Kirby.

The government in its argument then:

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