The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States (2019),; Mil. R. Evid. 304(d)(1), 404(b), 705; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1999); and Brady v. Maryland, 373 U.S. 83 (1963). See also, Uniform Rules of Practice before Air Force Courts-Martial, dated 1 October 2020; Rules 3.2 & 3.3; AFI 51‑201; AFGM2020-02, Administration of Military Justice, dated 5 October 2020, paragraph 5.12; AFI 51-110, Professional Responsibility Program, dated 11 December 2018, Attachment 2 (Air Force Rules of Professional Conduct); Rules 3.3, 3.4, 3.8 & 4.2 and Attachment 7 (Air Force Standards for Criminal Justice), Chapter 5. These items are relevant under UCMJ art. 32(a)(2)(D) and which calls upon the preliminary hearing officer to make a referral recommendation. NOTE: In the event charges are referred to trial, this disclosure request immediately becomes the FIRST defense discovery request.

Interestingly, in Cone v. Bell, 556 U.S. 449 (2009) the Supreme Court court suggests that the duty to provide Brayd[-plus] disclosures may be broader under a prosecutors ethical obligations. The military prosecutor’s ethical rules are:

• Rule 3.8(d), Air Force Instruction 51-110, Professional Responsibility Program.
• Rule 3.8.d, Army Regulation 27-26, Rules of Professional Conduct.
• U. S. Coast Guard, Legal Professional Responsibility Program, COMDTINST M5800.1.
• Rule 3.8.a(4), Judge Advocate General Instruction 5803.1, Professional Conduct of Attorney’s, applicable to both Navy and Marine Corps judge advocates.

We think an early Request is especially important in speedy trial situations–the client is in pretrial confinement or has been placed on restriction. The point is to make the prosecution either respond (thus showing some forward movement) or do nothing, in which case you may have an argument for a lack of reasonable diligence if the discovery comes much later. Remember,

“[O]nce an appellant is placed in pretrial confinement the Government is required to exercise “reasonable diligence” in bringing the accused to trial.” United States v. Danylo, 73 M.J. 183, 186 (C.A.A.F. 2014) citing United States v. Kossman, 38 M.J. 258, 262 (C.M.A. 1993) (internal quotation marks omitted).

Keep in mind that “The prosecution is deemed to have knowledge of information that is readily available to it. Kyles, 514 U.S. at 437; Williams v. Whitley, 940 F.2d 132, 133 (5th Cir. 1991); see Smith, 50 F.3d at 831. See generally United States v. Combs, 267 F.3d 1167, 1172-75 (10th Cir. 2001). Knowledge by any member of the prosecutor’s office is, and must be, imputed to any individual prosecutor responding to this demand, and because of the unusual role of a convening authority and staff judge advocate in the prosecutorial process this would include the convening authority and the SJA. Giglio v. United States, 405 U.S. 150, 154 (1972); Martinez v. Wainwright, 621 F.2d 184, 186-87 (5^th Cir. 1980). Additionally, and along the same line, the knowledge of governmental agencies connected with the investigation at bar is also imputed to any prosecutor responding to this demand. Gibbs v. Johnson, 154 F.3d 253, 256 (5th Cir. 1998); United States v. Avellino, 136 F.3d 249, 255 (2nd Cir. 1998); Fero v. Kirby, 39 F.3d 1462, 1472 n. 12 (10th Cir. 1994) cert. denied 515 U.S. 1122 (1995). Indeed, the prosecution is the only government agency with a Kyles duty to the accused. Mowbray v. Cameron County, 274 F.3d 269, 277 (5th Cir. 2001).”

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.

It seemed to me that absent this inadvertent disclosure to Rettinghouse’s counsel that the information may not have become known to the defense counsel, sadly. There is some indication that the trial counsel left it for the defense to find out. The disclosure of some apparently inconsistent statements caused the defense to make a discovery motion. I’m informed that once the defense got the interview notes that there was further information beyond that suspected which was also discoverable. I think many of us would have also asked the judge to order a copy of the complete trial counsel and SJA files for in-camera review.

Bottom line: information discovered by the prosecution in the course of interviewing witnesses that is or could be exculpatory is Brady material and should be disclosed, despite any claim of the information being work-product. That is a constitutional duty imposed on the prosecution by the United States Supreme Court and various ethics rules.

There is lots of discussion about ‘new’ issues raised in the government’s petition. But as observed to me this is the sole relevant discussion by the court on the validity of the abatement.

His order to produce the witnesses who could provide that testimony is not an abuse of discretion, and his order abating the proceedings for the government’s refusal to comply is in accord with R.C.M. 703.

If the government refuses to produce a witness as ordered by the military judge, the proceedings “shall be abated.” R.C.M. 703(c)(2)(D). Here, the military judge had previously ruled particular testimony relevant as impeachment. His order to produce the witnesses who could provide that testimony is not an abuse of discretion, and his order abating the proceedings for the government’s refusal to comply is in accord with R.C.M. 703.

A short simple statement on the issues properly before AFCCA.

One of the reasons that clients come to a civilian counsel is that they think the prosecution and defense counsel are too close, gossip with each other, and share too much information. In this case the problem, fortunately, redounded to the defense benefit in exposing a, IMHO, deplorable constitutional violation. The defense should read Ankeny.

A question now is will the government also ignore AFCCA’s decision.

A question, at what point does a prosecution refusal to abide by a military judge’s order become contumacious and/or frivolous?

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.

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.

Slip op. at 5 (emphasis added). This is so common – have a case right now where the prosecution admitted they’d not asked the NCIS investigator if there was anything in response to a very specific request.

Our superior court has previously noted that R.C.M. 701, “which sets forth specific requirements with respect to evidence favorable to the defense . . . implements the Supreme Court’s decision in Brady v. Maryland . . .” United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999) (internal quotations and emphasis omitted). We view our superior court’s guidance as requiring us to analyze nondisclosure issues under the statutory and executive order standards set forth by R.C.M. 701 and Article 46, UCMJ, which are broader than the Brady constitutional standard. See Santos, 59 M.J. at 321; United States v. Roberts, 59 M.J. 323, 326-27 (C.A.A.F. 2004). As a result, the government bears the higher burden of proving a nondisclosure in response to a specific request is harmless beyond a reasonable doubt. Webb, 66 M.J. 92; Roberts, 59 M.J. at 327. Issues of nondisclosure of evidence are reviewed de novo. See United States v. Eshalomi, 23 M.J. 12, 21-22 (C.M.A. 1986). The military justice system provides for broader discovery than due process and Brady require. See Santos, 59 M.J. at 321; United States v. Adens, 56 M.J. 724, 731 (Army Ct. Crim. App. 2002). Article 46, UCMJ, mandates the trial counsel and defense counsel “shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” The President has implemented Article 46, UCMJ in R.C.M. 701, which requires the government, upon defense request, to allow inspection of any tangible objects, such as papers and documents, that “are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(A). See also R.C.M. 703(a); R.C.M. 703(f)(1). In particular, the government must, upon request, permit the defense to inspect “[a]ny . . . reports of physical or mental examinations, . . . which are within the possession, custody, or control of military authorities . . . and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(B). See also United States v. Stewart, 62 M.J. 668, 671 (A.F. Ct. Crim. App. 2006). Although not a common occurrence, our court has previously recognized that an Article 46, UCMJ violation may occur without a coexistent violation of constitutional due process. Adens, 56 M.J. at 732 (government’s nondisclosure of inculpatory physical evidence violated a substantial right of the accused irrespective of a due process violation). We find the government’s nondisclosure violated Article 46, UCMJ, and R.C.M. 701, even though it did not violate Brady.

Ultimately the error was harmless beyond reasonable doubt.

[Update] CAAFLog points out that the court appeared to “spank” the prosecutors. Rightly so. It is not uncommon for prosecutors to do as this one did and blow-off the defense request by not making any effort to look for the requested information. The court describes such conduct as “dereliction.” Trigueros, Slip op. at 10-11.

As to the equal access. My point is that I often show up at an Article 39(a), UCMJ, session to litigate discovery, including mental health records, and the trial counsel says they have them and have looked at them. And they want to offer them to the MJ for in-camera review. At that point, why? If Article 46, UCMJ, means anything, why is the prosecution not required to turn them over? At least two Army judges I’m aware of, unfortunately retired now, have taken the position that if the prosecution has it the defense gets it. Whether or not the information is admissible is a different question. In some instances the disclosure has lead to admissible impeachment evidence. So much for the prosecution complying with Brady, Kyles, and Giglio.