According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Remember that before dismissing the panel at the end of the trial the military judge gives them instruction. They reminded of the secrecy of their deliberations and that they are not to discuss them with anyone unless a military judge orders that. There are several exceptions to the ban on questioning members about their deliberations. There are several exceptions to the Rule.

A member may testify about whether:

(A) extraneous prejudicial information was improperly brought to the members’ attention. United States v. Schloff, is an example of this exception (and exception (B)). During deliberations, the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial. (B) unlawful command influence or any other outside influence was improperly brought to bear on any member. See Schloff. (C) a mistake was made in entering the finding or sentence on the finding or sentence forms. We see this exception in use from time to time when the military judge believes the findings are ambiguous.

In Pena-Rodriquez v. Colorado, ___ U.S. ___, 2016 U.S. LEXIS 2424 (2016) , the Supreme Court basically held that “Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” In passing judgment the court noted that 16 jurisdictions allowed the no-impeachment rule to be pierced when there was an issue based on racial stereotyping. The court did caution however about creating exceptions to the no-impeachment rule. On the race issue,

The unmistakable principle underlying these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U. S. 545, 555 (1979). The jury is to be “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’ ” McCleskey v. Kemp, 481 U. S. 279, 310 (1987) (quoting Strauder, supra, at 309). Permitting racial prejudice in the jury system damages “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Powers v. Ohio, 499 U. S. 400, 411 (1991); cf. Aldridge v. United States, 283 U. S. 308, 315 (1931); Buck v. Davis, ante, at 22.

So as a military defense lawyer with a case at court-martial under the UCMJ, what can you do if the issue does not fit neatly into any of the exceptions and is not a racial stereotyping issue? Perhaps exception (A) might be the hole in the needle to thread. Yet, we have Missouri v. Gilbert, which says a jury verdict cannot be impeached when there is evidence the jurors held the accused’s silence against him.

The Gilbert court emphasized the limited exceptions in their state law making it only possible to have the testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations. The court observed that Gilbert was trying to create a new Missouri court-made exception for “improper consideration of a defendant’s failure to testify in reaching its verdict.” The Missouri court said it would not create this new exception.

In finding no error the court referenced Pena-Rodriguez v. Colorado, where the U.S. Supreme Court “warned that creating further exceptions to the general rule could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear … that the jury system would survive such efforts to perfect it.” Id. at 868 (internal citations and quotations omitted).

We do have some cases to review, for example,

• United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision.
• United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member’s alleged influence.
• United States v. Schloff, in which the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial.

One final note, in Iowa v. Spates, the court followed Pena-Rodriguez. In doing so the court said that appellate review had to apply an objective not subjective standard to any evidence.

[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.

It is challenging for a military defense lawyer to identify problems inside the jury box and even harder to make an appellate issue should there be some evidence of panel member misconduct. One way for the government to avoid the issue is to take special care during an argument not to raise the specter of a decision based on anything but the facts and the law. Seue, e.g., United States v. Garcia. Here the prosecution bilged the case for an accused who was found not guilty on retrial.

“This case involves numerous instances of improper argument during findings. Some were objected to and some were not. We discuss each instance separately and collectively assess whether they resulted in prejudice to appellant.”

Obviously, objections are more necessary now than before. The appellate courts are becoming more strict on waiver of objections and more parsimonious with the plain error analysis. Courts-martial under the UCMJ are supposed to be fairly decided on the evidence and the law and not on Service policy or similar doctrine such as zero-tolerance.

Their study suggests that 37% of wrongful convictions result from confirmation bias.

Table 1: Causal Factors (≥ 10) Causal Factor

Confirmation bias 37 Tunnel vision 24 High-profile crime/media attention 23 Management/supervision issues 22 Careless/incompetent investigation 20 Improper interrogations 20 Rush to judgment 19 Flawed forensics 15 Problematic witness/informant 14 Evidence analysis/logic failure 12 Interagency conflict/DA interference 10

Welcome to military sexual assault investigations and prosecutions.

confirmation bias, in particular, held a pivotal position in the causal structure of wrongful convictions. Faulty assumptions, probability errors, and groupthink often played supporting roles. Cognitive bias affects not just investigators, but also prosecutors, defense lawyers, scientists, military leaders, politicians-indeed, everyone.

“Believe the victim” and victim-centric interviews and investigations require the application of cognitive/ confirmation bias–IMHO deliberately. A presumption of guilt follows which reinforces CB.

Confirmation bias is a type of selective thinking. Once a hypothesis has been formed, our inclination is to confirm rather than refute it. We tend to look for supporting information, interpret ambiguous information as consistent with our beliefs, and minimize any inconsistent evidence. Types of confirmation bias include: (1) the biased search for evidence; (2) the biased interpretation of information; and (3) a biased memory (selective recall). Confirmation bias can cause a detective to interpret information in a biased manner-evidence that supports the investigative theory is taken at face value, while contradicting evidence is skeptically scrutinized. Other manifestations of confirmation bias include the failure to search for evidence that might prove a suspect’s alibi, not utilizing such evidence if found, and refusing to consider alternative hypotheses.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

WASHINGTON / May 23, 2019 – Over 100 law professors, practicing attorneys, scholars, and concerned citizens have endorsed a petition calling on the Department of Justice to promptly cease its support for guilt-presuming investigations. Commonly known as “victim-centered,” such methods vitiate notions of fairness and investigative impartiality and contribute to the problem of wrongful convictions.

“Victim-centered” methods such as Start By Believing advise investigators to start with a presumption of guilt, seek to “corroborate the victim’s account,” and write their reports using the “language of non-consensual sex.” (1) Such approaches violate ethical codes that require investigators to “present such evidence impartially and without malice.” (2)

Another “victim-centered” method is known as “trauma-informed,” which posits the cognitive effects on persons experiencing traumatic events. But experts have dismissed such notions as “psychiatric folklore,” lacking scientific verification, and even as “junk science.” (3)

Victim-centered methods have been discredited by a number of groups. The Air Force Office of Special Investigations found such methods to be “inappropriate and irresponsible.” (4) In 2015 the Arizona Governor’s Commission to Prevent Violence Against Women issued a letter saying Start by Believing “creates the possibility of real or perceived confirmation bias” and “strongly cautioned” state law enforcement agencies from using Start By Believing. (5)

The petition demands that the Department of Justice “promptly suspend its support for programs that call on detectives and investigators to reject their most basic of principles of fairness and that threaten to unravel the very fabric of our nation’s justice system.”

Journalist Emily Yoffe has termed victim-centered theories “junk science” because of their lack of scientific support and the circular logic they utilize. (6) Additional information is available in the CPI White Paper, ‘Believe the Victim:’ The Transformation of Justice. (7)

Links available here:

http://www.prosecutorintegrity.org/pr/over-100-law-professors-others-call-on-doj-to-stop-junk-science-victim-centered-methods/

This means, as a rule, you must prove your innocence.

“The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:

George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted. This article argues, however, that these courts are ignoring a forgotten Supreme Court opinion that was central to the creation of the Brady doctrine. In its opinion in Wilde v. Wyoming, the Court recognized that the suppression of favorable substantive evidence before a defendant’s guilty plea can violate the Due Process Clause. Later, the Court stated that its Brady opinion was merely an extension of its prior opinions such as Wilde. And yet, while each of the other opinions that formed the foundation for the Brady doctrine has had a lasting legacy, the Wilde opinion has been lost to time despite never being repudiated. This article calls for a resurrection of Wilde and the recognition of a right to evidence of innocence before pleading guilty.

This is from Prof. Colin Miller.

Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” Jones, 73 M.J. at 361 (footnotes omitted) (citation omitted). However, the second of these prongs is met only if the questioner was acting in an official law enforcement or disciplinary capacity, or could reasonably be considered to be acting in such a capacity by a “reasonable person” in the suspect’s position. Id. at 362. “Questioning by a military superior in the immediate chain of command ‘will normally be presumed to be for disciplinary purposes,’” although such a presumption is not conclusive. Swift, 53 M.J. at 446 (quoting United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991)) (additional citations omitted). An “interrogation” includes “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” Mil. R. Evid. 305(b)(2).

United States v. Ramesk, AFCCA, 29 Oct. 2018, at 17.

In United States v. Cox, decided by the Navy-Marine Corps Court of Criminal Appeals in November 2018, the Appellant raised three issues, one of which asked whether statements to a [civilian but military retiree] recovery care coordinator should be suppressed because they were not preceded with an Article 31, UCMJ, warning. The initial problem for Cox was her counsel’s failure to raise the issue prior to trial but waited until after entry of pleas. The CDC made the motion late–note this was a civilian counsel case (CDC). The CDC waited until testimony on the merits. It appears that the CDC acted “to gain a tactical advantage over the government.” Slip op. at 5. What advantage was to be gained is not clear from the record, other than an unprepared TC who now has to answer a significant motion on the fly.

(In practice, you should be careful when entering pleas. If possible delay entry of pleas as long as possible, most judges will allow a delay until a later date specified in the trial management order or will allow counsel to defer motions to a date set in the trial management order regardless of the entry of pleas.)

Here, the military judge did not find good cause for the delay in moving to suppress statements and found the issue was waived. Regardless, the military judge appears to have addressed the suppression issue (perhaps concerned that the NMCCA or CAAF might not find the issue waived). The military judge ruled that the civilian employee witness was not required to advise the accused of her right to silence. NMCCA found the issue was waived, but like the military judge addressed the suppression issue anyway and held the military judge did not abuse his discretion by admitting any incriminating statements.

In addressing the IAC claim for failure to raise the motion timely, NMCCA found there was no prejudice because the motion would have failed anyway. It will be interesting to see how CAAF if it grants a petition, deals with the issues. The law on civilian employees of the military and their obligation to give Article 31, UCMJ, warnings is reasonably clear at this point, but perhaps CAAF wants to put another nail in the coffin of a civilian employee’s Article 31, UCMJ, “obligation” and leave the question for resolution on a case-by-case basis. If the CAAF does find the statements should have been suppressed then they get to the waiver and IAC issue.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue. In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.

We can expand the initial request as more information comes to light. I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

In my view, the MCIOs (and trial counsel) do not comply with the law–let’s use Roberts as an example.

During an interview with defense counsel prior to trial, the lead AFOSI agent, SA M, revealed that he had previously been disciplined, but declined to provide any details. Defense counsel subsequently requested that the Government provide the defense with copies of all disciplinary actions taken against SA M. A Government attorney-adviser at AFOSI replied in a memorandum that he had reviewed records including those maintained on SA M, and found no information that had to be disclosed. The attorney-adviser further stated that his review of the SA M investigation “did not reveal that SA [M] lied or falsely testified about the matter.”

Huuum. Well, the MJ did the right thing and conducted an in-camera review, but denied the discovery–wrong.

The military judge reviewed the records concerning the investigation of SA M in camera. The information provided to the military judge revealed that approximately three years before Roberts’ court-martial, while SA M was at a training course, he had sexual intercourse with another married AFOSI member. The AFOSI investigative report of that incident contains a summary of an interview with SA M on February 13, 1997, in which he reportedly was given a rights advisement, and initially stated, “This is bullshit. There is no improper relationship,” before he stopped talking. SA M was subsequently given testimonial immunity and admitted to the intercourse with the married AFOSI member in a sworn statement. He was not criminally charged, but he did receive an Unfavorable Information File.

I ask you, how many of your clients have been prosecuted for this type of exchange during an interrogation? But that’s OK if an OSI agent. Don’t you wish your client could get the same break? I am continually surprised by the crimes MCIO agents commit and yet remain in the military and remain with the MCIO.

My suggestion is that Roberts controls and not Henthorn. Unlike federal courts, we have a broader discovery right despite the attempts of Congress, IMHO, to take away discovery mechanisms.

Keep this in mind because this is a potential problem for ALL military defense counsel offices. For some reason it’s OK in the military, which leads to this interesting conundrum.

Two co-accuseds a represented by a different lawyer from the same DSO, or ADC, or TDS office–according to the military not a problem.

Yes those same two accuseds cannot hire the same civilian attorney or two different civilian attorney’s from the same office because there’s a conflict of interest.

Why is this?

Doesn’t the conflict always exist.

[V]iolations of Brady are the most recurring and pervasive of all constitutional procedural violations, with disastrous consequences: innocent people are wrongfully convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful legal and ethical enforcement and accountability has a corrosive effect on the public’s perception of a justice system that often appears to be arbitrary, unjust, and simply unreliable.

Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 13, 15 (2007).

Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.

Yes, we know this to be the law, the issue is whether it is practiced. I would add that a discovery request, which I call a Kyles Request (think Kyles v. Whitley, 514 U.S. 419 (1885)), should be part of your practice. We certainly have some well-documented instances of prosecutor error in military cases. Recently, former Chief Judge Effron made a recommendation through the Military Justice Review Group to adopt a military prosecutors manual in the style of the U. S. Attorney’s Manual.

SJ notes:

• In the District of Nebraska, and as suggested by Judge Kozinski, [they] already issue mandatory Brady/Giglio disclosure orders, the violation of which would justify discipline. More specifically, federal judges should use as a disciplinary gauge, and require federal prosecutors to scrupulously comply with, part 9-5.001 (Policy Regarding Disclosure of Exculpatory and Impeachment Information) and part 9-5.100 (“Giglio Policy”) of the U. S. Attorneys’ Manual. That Manual is a full and fair exposition of the law. Indeed, it explicitly “errs” on the side of disclosure if there is a question.[v] The Manual would serve as an excellent policy model for state prosecutors to adopt.

They may err because:

“The prudent prosecutor will resolve doubtful questions in favor of disclosure.” . . . Such disclosure will serve to justify the trust in the prosecutor as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

Kyles, 514 U.S. at 439 (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

• Federal judges should not hesitate to employ their independent[vi] disciplinary authority to reprimand, suspend, or disbar prosecutors who violate our orders and the requirements of the Manual. See, e.g., NEGenR 1.7(b) & NEGenR 1.8(g). These judges should not wait for or depend on state disciplinary authorities to act. Nor should they wait for DOJ’s Office of Professional Responsibility to awake. In short, we federal judges are not and should not serve as potted plants, particularly when it comes to Brady/Giglio violators.[vii]

LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.” All this caused Capt X (the defense counsel) to audibly sob at counsel table, and she was unable to continue.

Unfortunately, it appears that the words and actions of the trial counsel (prosecutor) caused the defense counsel to make “several decisions about the appellant’s representation that were against her client’s interest, against the advice of the DHQE, and consistent with a concern for her and her husband’s situation.”

Sadly, today we report the decision in United States v. Hale, decided 31 May 2017, by the Navy-Marine Corps Court of Criminal Appeals. Of seven assignments of error raised on appeal, the court reversed on this issue: “III. That the appellant received ineffective assistance from his trial defense counsel, who were laboring under a conflict of interest[.]”

We find merit in the appellant’s third assignment of error. We find that his representation was adversely affected by a conflict of interest and that his convictions should be set aside under Cuyler v. Sullivan. Separately, we also find that the undisclosed conflicts of interest in this case were stark, corrosive to the fairness of the proceedings, and resistant to a standard prejudice analysis. On the basis of our review of the entire record, we judge that the findings should not be approved. . . . In his third assignment of error, the appellant alleges that his lead trial defense counsel had a conflict of interest, and that his trial defense counsel were ineffective. This assignment of error is factually related to his claim of prosecutorial misconduct. Because we resolve this case on grounds of ineffective assistance of counsel, we do not reach the issue of prosecutorial misconduct or the other assigned errors. But trial counsel’s actions—and defense counsel’s responses to them—are relevant to the appellant’s ineffective assistance and conflict claims. . . . First, LtCol CT made it clear that he took personal offense at trial defense counsel’s advocacy, and that he did not like the way defense counsel were trying the case. We expect that trial counsel do not normally take defense counsel’s tactics personally. In this case, LtCol CT did, and sometimes for no apparent reason.

Regrettably, this attitude showed throughout the case, both on and off the record.

There are other examples of off-the-record exchanges that tended to aggravate the potential conflict. One occurred after a motion session while counsel were still in the courtroom. LtCol CT told Capt KC, “If [you] were [your] husband, I would punch you in the face right now.”86 Another time, while discussing a defense discovery request, LtCol CT told Capt JS, “If you were my peer, I would have told you to f*** off.

[T]he defense counsels did not respect the judge’s ruling. [I]n an astounding show of contempt, [they] tried to force the judge to reverse himself by their unilateral withdrawal from the proceedings, on the apparent pretext that they were not prepared. They did not: voir dire the members challenge any member make an opening statement object to any prosecution exhibit cross-examine any prosecution witness object to any prosecution question present any defense case engage with the judge to prepare instructions to the members make closing argument object to clearly objectionable prosecution evidence present any matter in extenuation and mitigation most glaringly, they permitted appellant to make a very damaging and rambling unsworn statement without any apparent coaching or counselling whatsoever.

United States v. Galinato, 28 M.J. 1049, 1989 CMR LEXIS 488 (N-M.C.M.R. 1989).

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

https://www.justice.gov/usam/title-9-criminal

The probable cause standard is the same standard as that required for the issuance of an arrest warrant or a summons upon a complaint (See Fed. R. Crim. P. 4(a)), for a magistrate’ s decision to hold a defendant to answer in the district court (See Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provis ions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a Federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well.

And the Criminal Resource Manual.

There seems much in them that could be copied almost word for word.

And perhaps now it is time to adopt Rule 5.1, Fed. R. Crim. Pro., either by statute or executive order? IMHO, the President can amend R.C.M. 405, through the UCMJ art. 36 power, and adopt a rule similar to that found in federal district court.

https://www.law.cornell.edu/rules/frcrmp/rule_5.1

(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.

Under federal practice, a USA can still prosecute by restarting with new evidence should it arrive later and the prosecution not being barred by the statute of limitations.

Keep this in mind when the prosecution want’s to admit documents or reports.

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

In the recent reopened PCR proceedings, Adnan made the claim that the State violated the Brady doctrine by failing to disclose that an AT&T disclaimer about incoming calls being unreliable for determining location applied to Exhibit 31 (which did not include the disclaimer or the page indicating that the exhibit was a Subscriber Activity report). So, is there an analogous case finding a Brady violation under similar circumstances? Absolutely.

In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010).

Proposed D.C. Local Rule Would Expand Prosecutors’ Brady Obligations

Yesterday, Tom Moore sent me the following Amended Notice of Proposed Local Rule Change and Opportunity to Comment: Download Brady Proposal. This local rule change would increase the Brady obligations of federal prosecutors in the District of Columbia. The change was proposed by a committee that included Professor Cynthia Jones, who, as I’ve noted before, has long advocated for Brady reform.

Supreme Court of Ohio Gives Slap of the Wrist to Prosecutor Who Catfished Alibi Witnesses

I tweeted about the Brockler case yesterday. The only thing more surprising than the shocking misconduct of the prosecutor being “disciplined” is the way in which he was “disciplined” by the court.

The prosecutor created a fictitious Facebook page, and used it to “catfish” several alibi witnesses. He failed to immediately acknowledge this when confronted by another prosecutor. In fact he maintained that such deceptions are lawful.

Brockler continued to maintain that his conduct was ethical, acknowledging that his conduct violated the letter of the law, but claiming that there should be an exception for “prosecutorial investigation deception.” The Board of Professional Conduct disagreed with Brockler but merely “recommended that he be suspended for one year, fully stayed on conditions.” The Supreme Court of Ohio later agreed, finding that “the misconduct was an isolated incident in an otherwise notable legal career.” In other words, unless Brockler does something else wrong, he will not be suspended. I fundamentally disagree with the Supreme Court of Ohio, and so did Judge O’Donnell, who dissented with the following one sentence opinion: “Respondent engaged in unacceptable dishonest conduct that materially affected the administration of justice, and I would impose an indefinite suspension.” I will add that Brockler himself admitted that this wasn’t a one time thing; instead, he said that he had previously used the Facebook ruse in “a prior case.” Moreover, it’s not as if Brockler acknowledged his serious error in judgment and immediately made amends. Instead, he first covered up his actions and later claimed that they were justifiable and commonplace. To me, this justified a lengthy suspension, maybe even disbarment.

What do you do with the client file when the case is over?

This past July, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 471 Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled In this opinion, the committee considered the types of materials in client files that lawyers must return to clients at the conclusion of the representation. The committee had not addressed this topic since the issuance of Informal Opinion 1376 in 1977 Files in Possession of Trademark Counsel Pertaining to Trademark of a Client.

See more here.