Articles Tagged with Discovery

I came across this item reading some history on the current court-martial.  DNA has gained a prominent place in the prosecution and defense of criminal cases.  But this piece illustrates that the DNA may only be as good as the testing done and the people doing the testing.

The Army began its prosecution in 2006 after a cold case detective with the Cumberland County Sheriff’s Office ordered DNA tests on the rape kit of Eastburn and on a blood sample from Hennis. That testing, conducted by the N.C. State Bureau of Investigation, matched Hennis’ DNA to sperm found in the rape kit, according to court documents.

The military has done further testing, lawyers said Monday.

A case pending at the U.S. Supreme Court was recently settled out of court, and the case withdrawn from consideration.  It appears that there has been a settlement of $12M, for prosecutorial misconduct.

"This means prosecutors who step outside their traditional role and who act as investigators (in criminal cases) can still be subject to civil rights lawsuits just as police would be."

Prosecutors are normally immune from lawsuits involving work during trials. The 8th U.S. Circuit Court of Appeals decided in McGhee vs. Pottawattamie County in 2008 that plaintiffs could sue prosecutors under civil rights statutes if the alleged wrongdoing arose from investigatory work before the trial started.

Why am I not surprised by Issue III.  See one of my earlier blogs — The Prosecutor’s Gamble.  I’ve blogged several times about trial counsel “suppression” of evidence or information favorable to the defense, despite frequent public relations statements and appellate cases lauding the more open discovery to which a court-martial accused is entitled to under the UCMJ. 

The military justice system provides for broader discovery than required by practice in federal civilian criminal trials. See United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F. 1999).

Statutory and implemental regulatory discovery rights of a military accused are more generous than the constitutional discovery rights of his civilian counterpart. See, e.g., United States v. Simmons, 38 M.J. 376 (C.M.A. 1993); United States v. Green, 37 M.J. 88 (C.M.A. 1993); United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986).

Someone has made a valid request of Congress, and they have agreed:

The House Armed Services Committee on Wednesday suspended its investigation of the Nov. 5 shootings at Fort Hood, Texas, until the Department of Defense had finished its investigation.

DoD requested that Congress wait until its review had been complete before calling DoD witnesses to testify in public hearings, according to a release from committee chairman Rep. Ike Skelton, D-Mo.

United States v. Mott, once again, explores the prosecution obligation to disclose favorable evidence to the defense at court-martial.  In this case, the prosecutions own expert agreed with the defense theory as to the accused’s mental status.  None of this was disclosed to the defense.

In the instant case, this first step of analysis need not detain us. The Government concedes that their expert, Dr. Hagan, verbally informed the trial counsel that he agreed with the defense expert that the appellant suffered from a severe mental disease and that said disease caused the appellant not to understand the wrongfulness of his actions at the time of the charged misconduct. We have no doubt that knowledge of the existence of a Government medical expert whose professional opinion wholly supported the opinion of the defense expert is a fact both favorable to the appellant and material to an assessment of his guilt and/or punishment. We find, therefore, that the trial counsel’s failure to disclose the expert medical opinion of their expert, Dr. Hagan, was error.

“[N]eed not detain,” because it is patently obvious the information is discoverable.  This case is from RLSO Norfolk.  Doesn’t surprise me in the least.

I commented yesterday that the decision by the Homeland Security Committee could be a potential boon to defense discovery in Major Hasan’s court-martial at Fort Hood.

Homeland Security committee begins collecting discovery for the Major Hasan defense team.

It’s not clear yet, but it looks like the Army and Department of Defense might also be about to do the same.  One of the major issues that counsel have to pursue in death penalty cases at court-martial is the persons background.  Besides the potential insanity issue on the merits, it is critical to develop as much of a personal history and background as possible.  That means the defense will be requesting, and if they are smart, the government providing the expert assistance of a mitigation expert.  The committee and potential Army actions will be of potential assistance to the defense.  True, the investigations could develop something negative, but in this case that’s not something the defense needs to worry about at this stage.  The defense needs information, the prosecution will try to stop or delay them getting it, so outside help is welcome.

Army Times reports:

Sen. Susan Collins of Maine says the Senate Homeland Security Committee will open an investigation into the murders at Fort Hood with a public hearing this week.

Major Hasan is facing 13 specifications of premeditated murder and likely any number of other lesser charges at court-martial.

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