ERDMANN, J., delivered the opinion of the court, in which BAKER, J., joined. RYAN, J., filed a separate concurring opinion. STUCKY, J., filed a separate opinion concurring in part and
dissenting in part. EFFRON, C.J., filed a separate dissenting opinion.
We now review the following three issues: whether newly discovered evidence would probably have produced a substantially more favorable result; whether the military judge erred when he held that the Government was not required to disclose Prosecution Exhibit (PE) 17 to the defense in pretrial discovery; and whether Luke’s due process rights
have been violated by the lengthy post-trial processing of his appeal. We hold that the newly discovered evidence would probably not have produced a substantially more favorable result; if the military judge erred in holding that the Government was not required to provide the defense with PE 17 in pretrial discovery, it was harmless error; and Luke’s post-trial due process rights were not violated. We therefore affirm the Navy-Marine Corps Court of Criminal Appeals.
Here are the courts comments on discovery, but they don’t really resolve the issue. The courts comments do seem to imply there was a discovery violation based on the statements of the trial counsel. Certainly the CAAF’s record quotes imply a trial counsel sand-bagging.
“The military rules pertaining to discovery focus on equal access to evidence to aid the preparation of the defense and enhance the orderly administration of military justice.” United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004). “To this end, the discovery practice is not focused solely upon evidence known to be admissible at trial. . . The parties to a courtmartial should evaluate pretrial discovery and disclosure issues in ligis liberal mandate.” Id. (citation omitted).
Indeed “[a]n accused’s right to discovery is not limited to evidence that would be know to be admissible at trial. It includes materials that would assist the defense in formulating a defense strategy.” Webb, 66 M.J. at 92.