covered up evidence that could have discredited many of Lyons’ accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.

As we’ve discussed both types of information must be disclosed.

USA TODAY found a pattern of “serious, glaring misconduct,” said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors. “It’s systemic now, and … the system is not able to control this type of behavior. There is no accountability.”

Sentencing Law & Policy notes that USA Today has published again on this topic regarding holding (or the lack of) holding errant prosecutors accountable. Here is a link to USA Today with a list of the items. Of interest is the discussion of 201 identified instances of misconduct.

Here is a link to information about the Hyde Amendment. It doesn’t apply to courts-martial.

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.]

But how many times does something similar to that of Behenna’s counsel happen in cases. A witness or expert tells the prosecution something they don’t want to hear or tells the prosecution something helpful to the defense? How many times does the prosecution transmit that information to the defense? That’s what the Behenna case is about big-picture-wise. The military judge could have granted a mistrial, but that remedy is very highly disfavored because it is such a drastic remedy; the military judge (or the convening authority) could have granted a new trial which seems a less drastic remedy. See United States v. Webb, 66 M.J. 89 (C.A.A.F. 2008). In Webb the prosecution failed to disclose that the urinalysis observer had a prior Article 15 punishment and therefore had lied on his screening to be a urinalysis observer – goes to integrity and truthfulness. AFCCA and CAAF agreed that the military judge had authority to hold a post-trial hearing and to order a new trial for this discovery violation.

The disclosure of Brady material is a self-executing duty which exists without the need for a request by the accused. See United States v. Agurs, 427 U.S. 97, 107 (1976); United States v. Webb.

The rule of Brady v. Maryland, 373 U.S. 83 , arguably applies in three quite different situations. Each involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense. In the first situation, typified by Mooney v. Holohan, 294 U.S. 103 , the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury. . . . a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. The second situation, illustrated by the Brady case itself, is characterized by a pretrial request for specific evidence. In that case defense counsel had requested the extrajudicial statements made by Brady’s accomplice, one Boblit. This Court held that the suppression of one of Boblit’s statements deprived Brady of due process, noting specifically that the statement had been requested and that it was “material.”

Agurs addressed the “third” area of discovery where there is no specific request for evidence. United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999), is a relevant military case. In Williams the court identified three types of “files” to be searched.

(1) the files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses. (2) investigative files in a related case maintained by an entity “closely aligned with the” prosecution. (3) other files, as designated in a defense discovery request, that involved a specified type of information within a specified entity.

Impeachment evidence is Brady/Giglio material. In my earlier posting about discovery I mentioned United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003). In Agurs, the Supreme Court took the Thompkins line:

Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it. Cf. Giglio v. United States, 405 U.S. 150, 154 . (emphasis added).

Note that further in Agurs the HBRD standard is applied to the error. Agurs, 427 U.S. at 112. Keep in mind that unlike federal or state prosecutors, the trial counsel is bound also by Article 46, UCMJ, which is a guarantee of equal access to witnesses.

Discovery is not limited to matters within the scope of trial counsel’s personal knowledge. “The individual prosecutor has a duty to learn of any favorable evidence known to others acting on the Government’s behalf.” United States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)). “Trial counsel must exercise due diligence in discovering [favorable evidence] not only in his possession but also in the possession . . . of other ‘military authorities’ and make them available for inspection.” United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993). “The parameters of the review that must be undertaken outside the prosecutor’s own files will depend in any particular case on the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request.” Williams, 50 M.J. at 441.

United States v. Jackson, 59 M.J. 330, 334 (C.A.A.F. 2004). In Williams the court admonished:

The Supreme Court emphasized in Kyles v. Whitley, supra, that the prosecutor “has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” 514 U.S. at 437 (emphasis added). As noted by the court below, “a prosecutor’s duty is not to win the case, but to ensure that justice is done.” 47 MJ at 625.

In the Behenna email the trial counsel says:

I received this email this evening. I am not sure that I believe [D]r. MacDonald’s new opinion is exculpatory, but I wanted to send it to you in an abundance of caution.

There are indications that the “new opinion” was known and that was the reason Herb MacDonald was released as a government witness. Dr. MacDonald says, “. . . I could not believe how close it was to the scenario I had described to you on Wednesday [before I heard the accused’s testimony].” So, the indications are that he told the prosecutors that and got the, ‘thanks we don’t need you anymore,’ but not the, ‘before you go can you explain that same theory to the defense.’

“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 v. Whitley, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger v. United States, 295 U.S. 78, 88 (1935)).

Remember that discovery practice is not focused solely upon evidence admissible at trial. See United States v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)(materiality standard normally “is not a heavy burden,” evidence is material as long as there is a strong indication that it will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.)(citations omitted); United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).

Ultimately the result in Behenna is going to come down to a “so what?” Best case for the defense is that the testimony of Dr. MacDonnell (“inventor” or close to and guru of blood spatter and an early reconstructionist) would have given strong credible corroboration to Behenna’s testimony, that the judge would have admitted it, and that it could have affected the outcome.

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Brady v. Maryland, 373 U.S. 83, 87 (1963) (due process violated where prosecution withholds information requested by defense that is material to the issue of guilt or sentence); United States v. Bagley, 473 U.S. 667, 678 (1985)(evidence that could be used to impeach a government witness is subject to discovery.)

A cruiser skipper who was fired for cruelty and mistreatment of her crew will go before a Navy board of inquiry Tuesday that will recommend whether she can continue her Navy service.

A Behanna update by Army Times:

The Army Clemency and Parole Board in Arlington, Va., will review First Lt. Michael Behenna’s case on Thursday, The Oklahoman reported Monday. It will be the second time this year the board has reviewed the case. After the first review, it reduced his sentence by five years. It was not immediately clear why the board was looking at the case again. On Dec. 9, the Army Court of Criminal Appeals will hear oral arguments in Behenna’s appeal. Behenna has said he failed to receive a fair trial because an expert witness retained by prosecutors never testified, but had information that could have cleared him. The NewsOK has a fuller report including some of the details of the offenses.

LA Times reports:

Pfc. David Lawrence faces a military hearing in Ft. Carson, Colo. His parents and attorney say he showed signs of mental instability before last month’s slaying in Kandahar.

Dayton Daily News reports:

A court-martial scheduled next week in Illinois for the Air Force Materiel Command’s former top enlisted man is being postponed, an Air Force spokeswoman said Monday. No new date for the court-martial of Chief Master Sgt. William C. Gurney was immediately announced. The Air Force’s charges against Gurney include adultery, dereliction of duty, maltreatment, indecent conduct, wrongful sexual contact, failure to obey an order or regulation, and misuse of official position.

Military.com reports:

A senior noncommissioned officer with the North Carolina National Guard will be leaving the service a stripe lighter as a result of a Guard and Army investigation into his wearing unauthorized unit patches, tabs, decorations and badges.

Army Times reports:

Staff Sgt. Francisco Carrillo was a squad leader on patrol in Iraq searching for weapons and insurgents, riding in the lead vehicle of a convoy when an improvised explosive device ripped through one of the Humvees, injuring his platoon sergeant, another squad leader in his company and the gunner. That was five years ago. Today, Carrillo is locked in a battle with the Army. He says he has suffered symptoms of post-traumatic stress disorder since he returned from the deployment in 2005. The Army says he’s lying. Carrillo, who has 18 years of service, is seeking medical retirement. But a panel of doctors at Madigan Army Medical Center said the California National Guardsman with the 649th Engineer Company lied in his Fit for Duty Evaluation and faked PTSD symptoms to collect the benefits that come with medical retirement.

The Press-Register reports:

The flight sergeant on duty when Airman Cory McCord of Troy, Alabama, shot himself to death Aug. 6, faces a court martial on charges she failed to keep McCord out of a secure building at the Grand Forks Air Force Base.

A Davis-Monthan airman is on trial in military court this week over allegations that he ran a fraudulent Russian bride ring, arranging sham marriages for money with members of the military so the foreign women could obtain legal status in the U.S.

The Record-Courier reports on the Davila case:

Family members of murdered soldier Timothy and Randy Miller are preparing for a day of testimony from the defense after a daylong hearing for the prosecution on Monday.

Army Times reports:

Family members of soldiers who are imprisoned at Fort Leavenworth for killings during the Iraq war are planning a rally in Leavenworth. The relatives call the inmates the Leavenworth 10, although two have been released from the prison. Scott Behenna, one of the organizers of the Labor Day weekend rally, says the group is not anti-military.

What impact, if any, might this have on Behanna’s continuing requests for clemency?

Marine Corps Times reports this piece of collateral consequences:

Some military veterans are angry that a World War II soldier who died in prison after pleading guilty to killing his wife is scheduled to be buried Tuesday in Denver’s Fort Logan National Cemetery. Raymond R. Sawyer, a former Marine from Colorado, died Aug. 11 in a Tucson, Ariz., state prison while serving 13 years for second-degree murder.

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.

Vicki Behenna has 10 minutes to plead her son’s case. Where does she begin? In the last few months, she has developed hours of arguments about why U.S. Army 1st Lt. Michael Behenna was wrongly convicted of killing a suspected terrorist in Iraq in 2008, why his 20-year sentence for unpremeditated murder was too severe compared to other sentences for the same offense and why the military rules for detaining suspected terrorists make no sense in a combat zone. She will have to condense all that into a matter of minutes when she appears Thursday before the Army Clemency and Parole Board in Arlington, Va.

Reports NewsOK.

Having done hearings at the Army Clemency & Parole Board I am not sure that the Board will hold her exactly to the ten minutes. True, such presentations need to be clear, concise, and tailored. But in my experience the board members, including Mr. Vick from time to time will have pertinent questions. And there will be some leeway to make sure a point is made and understood.

Here is a link to Band of Mothers referenced in the piece. And here is the link to the Behenna website.

Below is the text of the sworn affidavit, dated April 21, in which Dr. MacDonell explains how knowledge he obtained while waiting to testify in the case could have changed dramatically its outcome,

in the court-martial of 1Lt Michael Behenna, for murder and other violations of the UCMJ.

McCarty & Fatigante, at BigGovernment blog.