Articles Tagged with Discovery

Well, I use Wikipedia for research.  But, I use it “in some limited situations . . . for getting a sense of a term’s common usage."  Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011),   Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads”  The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").). 

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

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.]

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.

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. 

In the world of military justice it’s the small things that seem most encouraging at times.  So . . .  In my standard Article 32, UCMJ, production request (based on R.C.M. 405(f)(9)(10) primarily) or trial discovery demand one of the provisions is this:

3.  Declination to Produce or Disclose.

    a.  If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)).  Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review.  See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

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.

TPMMuckraker reports:

Appearing on the G. Gordon Liddy radio show today, the attorney for Lt. Col. Terrence Lakin, the Birther Army doctor who is said to be facing a court martial for refusing orders, suggested that if his client is court-martialled, he will use discovery to try to further the Birther crusade.

Jensen said he expects an investigation of Lakin under Article 32 of the Uniform Code of Military Justice — which precedes a court martial — to begin as early as today or tomorrow.

WorldNetDaily reports that LTC Lakin will be confessing on G. Gordon Liddy’s TV show tomorrow.

The officer refusing Army orders until Barack Obama documents his eligibility to be president and commander in chief is hitting the airwaves tomorrow to answer questions about his challenge to the president.

Lt. Col. Terry Lakin is scheduled to be on the G. Gordon Liddy show tomorrow from 10-11 a.m. EDT.

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.

R.C.M. 701(b)(2) sets out the requirement for defense disclosure if there will be an innocent ingestion defense.

Assuming the accused is the only witness who may testify to an innocent ingestion, must the defense disclose that under the rule.  My answer is no.  To force a disclosure prior to testimony violates the accused’s right to silence at trial and under Article 31, UCMJ.  The President has addressed this issue in R.C.M. 701(g)(3)(D), and IMHO C.A.A.F. has also put the question to rest.

Appellant argues before this Court that the military judge improperly restricted his right to present his defense at this court-martial. This improper restriction, he asserts, stems from the trial judge’s misreading of RCM 701 and his resulting rejections of appellant’s profferred defense of "innocent ingestion." He contends that the trial judge erroneously prevented him from testifying to his belief that his drink was spiked, and to the circumstances supporting that belief, unless he had corroborating witnesses who actually tampered with his drink or saw someone else do it. We hold that the trial judge’s reading of RCM 701 was incorrect.

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