Articles Tagged with brady

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. 

Main Justice reports:

A high-profile appeal of an Army First Lieutenant convicted last year of killing an unarmed detainee in Iraq could turn in part on whether military prosecutors withheld exculpatory evidence.

[The] case underscores how the government is being forced to explain, in the military courts as well as the civilian justice system, its compliance with Brady v. Maryland, the 1963 Supreme Court case that requires prosecutors to turn over exculpatory information to the defense.

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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