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).”

There are several rules set out in the Manual for Courts-Martial that your military lawyer or civilian defense counsel knows about. The rules are contained in Rule 701.

Special defenses.

Rule 701(b)(2) is reasonably straightforward and requires notice “before trial” of

• An alibi defense. Basically, you were somewhere else than at the place of the alleged offense so you couldn’t be the person who committed the offense.
• A lack of mental responsibility (LMR) defense. Generally, this means that at the time of the alleged offense you had
  • “a severe mental disease or defect, and
  • was unable to appreciate the nature and quality or the wrongfulness of your acts.
  • An innocent ingestion defense. Generally, this comes up most frequently when someone tampers with a drink or food. Your military defense counsel will be able to discuss the ways in which you unknowingly or unintentionally ended up with drugs in your body.
  • The notice requires information about the time, place, and witnesses to the defense. This includes expert witnesses who will testify about an LMR at the time of the offense or at trial.
    • It is my view as a military defense counsel that you do not have to give everything to the prosecution at this stage, but there are several other rules that later will require you to give more information such as any witness statements you have.

Evidence on the merits.

If, repeat if, your military defense lawyer has submitted a discovery request to the prosecution then Rule 701(b)(3) requires you to disclose evidence you intend to use the item in the defense case-in-chief at trial. I take a narrow view of this rule. Please note that all competent military defense counsel is usually going to submit a detailed discovery request on your behalf. I have in a couple of cases not submitted a written discovery request purposefully so Rule 701(b)(3) doesn’t apply. This is tricky because you are relying on the prosecutor to provide Brady material and discovery that is required of them.

If you have the evidence in your possession, custody, or control, and

You will present the evidence through a defense witness, a certified copy of a document, or judicial notice, you must provide it before trial on the merits, and the prosecution asks for it. If the prosecutor doesn’t ask you don’t have to give. I will say, however, that it is best to give anyway. If you don’t the prosecutor will whinge to the judge and the judge will be unhappy because there’s a delay in moving the trial forward. Usually, any “anger” is directed to the defense counsel even though it is the prosecutor’s fault for not asking.

What is the defense case-in-chief?

• The prosecution has rested their presentation of evidence, and
• it is the defense’s time to call witnesses.

That is your case-in-chief period.

• In my view, you do not have to disclose anything to be introduced through the accused’s testimony until he actually takes the stand. This is because his right to remain silent protects that information. When he takes the stand the right to silence is waived on the issues about which the accused testifies as well as the attorney-client privilege.

Sentencing.

Unfortunately, the military justice process requires that your defense counsel prepare a sentencing case in the event of a conviction. In the process, your military defense lawyer will gather documents (from your service record) and statements from people who would be rehabilitation and character witnesses.

Under Rule 701(b)(1)(B) your defense counsel must provide a list and contact information for witnesses and also allow the prosecution to “inspect” any written materials. Technically, to inspect means to be allowed to read and review. But the common practice is for each side to share copies of any documents and statements.

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011), Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads” The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar “apples to oranges” idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define “peer-to-peer file sharing”).).

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Citing Wikipedia is as controversial as it is common.2 Some courts approve it, others condemn it. Compare United States v. Lawson, 677 F.3d 629, 650 (4th Cir. 2012) (stating that the court is “troubled by Wikipedia’s lack of reliability”), Bing Shun Li v. Holder, 400 Fed. App’x 854, 857-58 (5th Cir. 2010) (expressing “disapproval of the [immigration judge]’s reliance on Wikipedia and [warning] against any improper reliance on it or similarly unreliable internet sources in the future”), Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008) (noting Wikipedia’s acknowledgment that, “at any given moment,” an entry “could be in the middle of a large edit or it could have been recently vandalized” (citation and internal quotation marks omitted)), and In re Marriage of Lamoure, 132 Cal. Rptr. 3d 1, 15 (Cal. Ct. App. 2011) (“We do not consider Wikipedia a sufficiently reliable source” for defining the term “noncustodial.”), with Prude v. Clarke, 675 F.3d 732, 734 (7th Cir. 2012) (citing Wikipedia entry, in the context of an Eighth Amendment challenge, for the proposition that an anal fissure “is no fun at all”), United States v. Brown, 669 F.3d 10, 18 & n.12 (1st Cir. 2012) (citing Wikipedia for its definition of “sovereign citizen movement,” one of a criminal defendant’s “atypical legal beliefs”), Murdock v. Astrue, 458 Fed. App’x 702, 705 n.3 (10th Cir. 2012) (citing Wikipedia for “some examples of block lengths from cities in this country”), and State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define “peer-to-peer file sharing”).

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.

——————————

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.)

The military judge properly concluded the government “had an obligation to provide that CID report of investigation to the [d]efense, even absent a discovery request of any kind.” and thus violated its disclosure duties under the United States Constitution and the UCMJ.See UCMJ art. 46; Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004); R.C.M. 701.

I think ACCA agrees.

In a retrial of a premeditated murder case, we must decide whether the government’s failure to disclose impeachment information about the lead United States Army Criminal Investigation Command (CID) agent was harmless beyond a reasonable doubt. We strongly condemn the government’s tactics in this case and remind practitioners that gamesmanship can play no part in the discovery process in the military justice system.

United States v. Dobson, ARMY 20000098, 2010 CCA LEXIS 86 (A. Ct. Crim. App. 2010).

In its 19 October 2006 written response to the defense request, the government stated, “Special Agent [JR] is currently being investigated for misconduct. . . . MAJ S was unsure whether the amount alleged to have been stolen was $50,000 or $500,000 and was further unsure what charges the government planned to prefer against SA JR. . . . Neither MAJ S nor any other government agent ever disclosed to the defense that SA JR was also under investigation for fraud. . . . On 13 March 2007, one week after appellant’s court-martial concluded, the government preferred numerous charges against SA JR, including dereliction of duty, larceny, fraud, and fraternization. On 30 May 2007, the defense filed a motion for a mistrial.

Interesting timing, and here’s an interesting comment on the government’s integrity.

the military judge found although government counsel “testified to the contrary,” the government made a “tactical decision not to prefer charges against [SA JR] prior to Dobson II . . . because of the potential impact preferral would have on [SA JR] as a witness in Dobson II.”

So trial counsel wasn’t being straight with the judge. But then:

Despite the military judge’s finding that the government made a “tactical decision” as to when to prefer charges against SA JR, the military judge “cho[se] to believe and [found]” the government’s actions in this case were not intentionally designed to “conceal” the CID investigation from the Dobson defense team. Instead, the military judge found the government’s actions in “holding the CID investigation unless there was a specific request for it, . . . keeping the trial counsel in Dobson II in the dark as to [the existence of the CID investigation], and not preferring charges against [SA JR] until after Dobson II” were “borne from the [g]overnment’s significant misunderstanding of discovery rules and obligations.” (Emphasis added.)

OK, now let’s keep in mind this was 2006. So I don’t buy the lack of understanding of knowledge about discovery obligations. The TJAGSA, NJS, etc., have been in business a while. If this were in the 1950’s, or at least prior to Brady and Giglio . . . Everyone gets discovery 101 at initial training, and there’s plenty of access to the rules and caselaw these days. Judge Ham concludes:

While we defer to the military judge’s evaluation of the witnesses’ credibility and his finding that the government’s violation of discovery rules was not deliberate, but rather ignorant, neither is tolerable. Hiding the ball and “gamesmanship” have no place in our open system of discovery. See United States v. Adens, 56 M.J. 724, 731 (C.A.A.F. 2002) (broad discovery at an early stage reduces pretrial motions, surprise, and trial delays . . . leads to better informed judgments about the merits of the cases and encourages broad early decisions concerning withdrawal of the case, motions, pleas, and composition of the court-martial—in short its practice “is essential to the administration of justice . . .”); United States v. Dancy, 38 M.J. 1, 5 n.3 (C.M.A. 1993) (explaining the “unfortunate consequences of a trial counsel’s disregard for the discovery rights of an accused”); United States v. Lawrence, 19 M.J. 609, 614 (A.C.M.R. 1984). Despite our holding in this case, we reiterate that all counsel must be competent. Ignorance or misunderstanding of basic, longstanding, and in this case, fundamental, constitutionally-based discovery and disclosure rules by counsel undermines the adversarial process and is inexcusable in the military justice system. (Emphasis added.)

Unless the error is harmless beyond reasonable doubt. Which fortunately for the government was apparent in this case.

Another point I make from time to time comes from United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003); and this arises in the context of trial counsel knowledge and experience as alluded to in Dobson. When the prosecution or the MJ want to let the government get away with something because it was due to inexperience or lack of knowledge the question is not whether that inexperience or lack of knowledge is to be excused but whether there is an adverse impact on this accused’s trial.

Defense counsel moved for a mistrial under Rule for CourtsMartial 915. The prosecution opposed the motion, stating that the assistant trial counsel’s actions were “due to inexperience and probably a lack of guidance” but were not deliberate. Defense counsel argued that the issue on the motion for mistrial was prejudice, rather than whether the actions were innocent or willful.

Note the chronology in this case. The MJ excludes testimony or evidence, the prosecution brings it up, the defense objects and asks for a mistrial, and the prosecution does it again.

In Smith v. Phillips, 455 U.S. 209, 219 (1982), the Court opined that “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Accordingly, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness. Id. at 220.

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?

3. Declination to Produce or Disclose. a. If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)). Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review. See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984). b. If any information responsive to this request is not produced because it is unavailable: state with particularity the following. (1) Item sought. (2) Date requested from person or agency believed to be in possession. (3) Full name, address, telephone number, of each person contacted in order to obtain production. (4) Reason the item is unavailable. (5) Steps taken to locate and obtain the information.

You know how under Article 36, UCMJ, practice in courts-martial is supposed to be a close to that of the federal district courts as possible.

[Rules] which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.

So for some strange reason I adopted the Vaughn “notice,” and expanded it a little. Suggestions to improve always welcome.

Well, suffice it to say I’ve never had a trial counsel comply with my Vaughn notice request. Oftentimes it’s the standard, “denied.” It seems to me the Vaughn demand sorta encompasses some of the self-executing trial counsel obligations under Brady, Giglio, and Kyles. You know, those items of discovery that the prosecution is supposed to actually look for and to provide regardless of R.C.M. 701. (It is also my position that the trial counsel actually does have to go and look for those items. And how many times are they required to actually look? How many military judge ask, “did you look?”) Well on the discovery issue it seems to me that the trial counsel could do themselves and the military judge a favor and respond to the Vaughn request. Because if the issue gets litigated, isn’t the military judge going to question, or should question, the government along the lines of my Vaughn request?

Anyway, I was encouraged this week. While docketing a case the military judge sua sponte told the trial counsel that any discovery denials should be specific and detailed, none of the usual blanket “denied.” While the military judge did not list the Vaughn factors, my sense is that the military judge was attuned to the concept and may not be satisfied with the standard, “we don’t have it, we haven’t looked, and even if we did you can’t have it,” denial.

So, I am encouraged, albeit in a small way.

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.

Appearing on the G. Gordon Liddy radio show today, the attorney for Lt. Col. Terrence Lakin, the Birther Army doctor who is said to be facing a court martial for refusing orders, suggested that if his client is court-martialled, he will use discovery to try to further the Birther crusade. Jensen said he expects an investigation of Lakin under Article 32 of the Uniform Code of Military Justice — which precedes a court martial — to begin as early as today or tomorrow.

Here is a link via G. Gordon Liddy’s website to a iTunes, or other hearable version of the introductory portion of the interview. Use the GGL – 4-20-10 H1.

Notes from my listening.

Attorney, from California, Paul Jensen. A number of lawyers with this name are on the web.

Courtesy of Dwight “ML” Sullivan, the lawyer is narrowed down to Paul Rolf Jensen. He does not appear to have any experience in military law or criminal law for that matter. While it may not matter, a military defense counsel will be assigned as co-counsel. Although I suppose it is always possible that the appointment will be refused on the basis that a TDS attorney is not properly appointed. (Oooops, where did we put those Weiss pleadings.)

Here is a link at which Mr. Jensen indicates clerking for former Chief Judge Everett at C.M.A.

In 1990, Jensen worked in the chambers of the Chief Judge of the United States Court of Appeals for the Armed Forces as a judicial research assistant to Chief Judge Robinson O. Everett.

The officer refusing Army orders until Barack Obama documents his eligibility to be president and commander in chief is hitting the airwaves tomorrow to answer questions about his challenge to the president. Lt. Col. Terry Lakin is scheduled to be on the G. Gordon Liddy show tomorrow from 10-11 a.m. EDT.

As a conspiracy theorist I think this is a plot all intended to create a Wuterich issue thereby delaying any action while litigation is ongoing about out-takes. I did check, and there is no definition in the DSM IV for guano loco (but a change in the soon to be released DSM V may be expected perhaps). [n.1]

“Rather than contesting the suit,” Day wrote, “the Army took the highly peculiar step of revoking the major’s deployment order, suggesting that the Pentagon generals are not entirely confident that they can demonstrate the legitimacy of their purported commander in chief. “The Pentagon’s decision to back down rather than risk exposing Obama’s birth records to the public means that every single American soldier, sailor, pilot and Marine now holds a ‘get out of war free’ card.”

The major – referring to the abortive case of Major Cook — was on voluntary orders. He could have just as voluntarily asked to revoke them at any time up until the day before going. He chose to express his request to revoke the voluntary orders through litigation. So why not just revoke the orders. That’s not backing down.

A spokeswoman for the case, Margaret Calhoun Hemenway, told WND that whatever the “assignment” amounts to, Lakin’s access privileges were revoked, his computer was confiscated and he “is not permitted to support his Hippocratic oath … and take care of the troops as a doctor and a surgeon.”

This is standard procedure for anyone who is placed in a disciplinary status and won’t be working in the Pentagon anymore. Then of course, if it was a government computer the government is entitled to take it back. It’s organizational property, has to be accounted for, and LTC Lakin doesn’t need it anymore. There’s nothing sinister about that. He had the opportunity to practice his Hyppocratic oath, and along with his oath as a commissioned officer. He’s given both up.

n.1. The Urban Dictionary defines guano loco variously:

Crazy, in fact probably totally insane. Acting in the manner of Tom Cruise jumping on Oprah’s sofa or Joaquin Phoenix on the Letterman show. Hearing voices and imagining things that haven’t happened or people saying things that they haven’t. Possibly caused by some recent trauma, however more than likely always present just brought to the surface in times of high emotion.

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.

Assuming the accused is the only witness who may testify to an innocent ingestion, must the defense disclose that under the rule. My answer is no. To force a disclosure prior to testimony violates the accused’s right to silence at trial and under Article 31, UCMJ. The President has addressed this issue in R.C.M. 701(g)(3)(D), and IMHO C.A.A.F. has also put the question to rest.

Appellant argues before this Court that the military judge improperly restricted his right to present his defense at this court-martial. This improper restriction, he asserts, stems from the trial judge’s misreading of RCM 701 and his resulting rejections of appellant’s profferred defense of “innocent ingestion.” He contends that the trial judge erroneously prevented him from testifying to his belief that his drink was spiked, and to the circumstances supporting that belief, unless he had corroborating witnesses who actually tampered with his drink or saw someone else do it. We hold that the trial judge’s reading of RCM 701 was incorrect. Instead, we more reasonably construe this rule as requiring notice of witnesses to innocent ingestion, other than an accused, only if an accused intends to call such witnesses to establish this defense at trial. Finally, even if the language of RCM 701(b)(2) might be construed to require such independent and direct proof, other language of this rule expressly states that “this rule shall not limit the right of the accused to testify in the accused’s behalf.”

United States v. Lewis, 51 M.J. 376, 380 (C.A.A.F. 1999).

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. One of the tests found Eastburn’s DNA but none from anyone else, said Lt. Col. Kris Poppe, who is one of Hennis’ defense lawyers. Capt. Matt Scott, one of the case’s four prosecutors, argued that the technician who tested the DNA said Eastburn’s DNA could have washed out any male DNA in the sample. The technician suggested another DNA test, one designed to look only for male DNA, Scott said. The male DNA test was done. It did not clear Hennis as the source of the sperm, but Poppe said the result is not precise. The defense lawyers have done their own DNA testing and have not shared the results with prosecutors. Scott told the judge, Col. Patrick Parrish, that the defense team will try to use the Army’s DNA results to mislead the jury, and he asked Parrish to require that defense lawyers share their DNA test results.

R.C.M. 701(b) covers reciprocal discovery by the prosecution. Here is the relevant part of the rule, R.C.M. 701(b)(4).

. . . possession, custody, or control of the defense that the defense intends to introduce as evidence in the defense case-in-chief at trial or that were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that witness’ testimony (emphasis added).

So, IMHO until the defense puts a DNA examiner on the witness list there appears to be no need to provide any of their own DNA test results. Further, the defense is not required to disclose the DNA results unless they intend offering the information in their own case. (And by the way, contrary to some new arguments that are coming up in some Article 32, UCMJ, hearings that I have done, there is no reciprocal discovery at an Article 32, UCMJ, hearing. See R.C.M. 405. As I frequently say, R.C.M. 405 is a stand-alone “manual” of rules of procedure and evidence at an Article 32, UCMJ, hearing. Except for certain of the rules of on privileges, you can rip out that part of the M.C.M. and you don’t need anything else from the manual. Reciprocal discovery does not apply until after charges are referred and if the defense submits a discovery request.)

The DNA evidence may face another challenge. The judge and lawyers briefly discussed a story which appeared in The Fayetteville Observer on Monday about a pending review of thousands of old cases by the State Bureau of Investigation. . . . The state attorney general ordered the review after North Carolina’s Innocence Inquiry Commission last week exonerated a man in part because of a problem with the SBI lab. In the early 1990s, the lab did not tell anyone that preliminary blood test results used to convict the man were found to be wrong in follow-up testing. . . A longer version of that news article, published Sunday in The News & Observer newspaper in Raleigh, said a forensic scientist who does consulting for defense lawyers believes the SBI lab is troubled. “They seem to be bending the science often,” she told the N&O, and she said she found an incident in which the lab mixed up the DNA of a suspect and the victim.

“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.

Reports the Des Moines Register.

With justices [of the U.S. Supreme Court] signaling they might favor the men, the county settles for $12 million. Decades later, they [the wrongly accused and convicted] were able to obtain official files showing that police and prosecutors Dave Richter and Joe Hrvol coaxed the witness to implicate them, while ignoring evidence that pointed to the white suspect. The sole witness against the two men recanted his testimony.

This is what is known and what I frequently talk about as Confirmatory Bias.

But several justices said they found that argument appalling. They signaled they were not prepared to shield prosecutors who knowingly fabricated a case against a suspect.

Reports the LA Times (emphasis added).

Prosecutors who mishandled the investigation into a deadly 2007 Blackwater Worldwide shooting face a possible misconduct citation from a judge who says they withheld evidence and violated the guards’ constitutional rights.

Reports Military.com. And I’m sure you’ve seen other reporting on the dismissal of the Blackwater case. Here is a link to a better article and also the District Court opinion.

I have blogged about discovery here, here, and here. There have been a number of developments in prosecutor discovery issues and as a result the Department of Justice has done an overhaul of their internal rules and procedures. In response to multiple cases where U.S. Attorney’s have failed miserably their discovery obligations, the DoJ has issued these new policies.

• Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group
• Requirement for Office Discovery Policies in Criminal Matters
• Guidance for Prosecutors Regarding Criminal Discovery

These policies should be taken to heart. For example, trial counsel routinely say they don’t have to go looking beyond their own file and frequently refuse to search law enforcement files. Well you say, it’s the civilian prosecutor. Not so.

United States v. Mott. “Prosecutors still playing games with discovery,” is how I titled my blog on this case. United States v. Behenna. This is an ongoing saga similar to the issues and problems in Mott. In each case the prosecutor came across their own expert who had things to say about the case they didn’t like. There’s no obligation to use the expert. However, in each circumstance the prosecutor had an affirmative obligation to tell the defense.

“the individual 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.”

Kyles v. Whitley, 514 U.S. 419 (1995).

Here is a DOJ training effort, TJAGSA where are you, you do the best work in MJ training. (n.1) In addition, we (DOJ) will:

• Create an online directory of resources pertaining to discovery issues that will be available to all prosecutors at their desktop;
• Produce a Handbook on Discovery and Case Management similar to the Grand Jury Manual so that prosecutors will have a one-stop resource that addresses various topics relating to discovery obligations;
• Implement a training curriculum and a mandatory training program for paralegals and law enforcement agents;
• Revitalize the Computer Forensics Working Group to address the problem of properly cataloguing electronically stored information recovered as part of federal investigations;
• Create a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.

————————————————————-

N.1. Sorry, used to get in trouble all the time for suggesting/recommending that military justice training be consolidated at TJAGSA. Do like the Armed Forces Staff College does. Have a “service week (or component)” at the end or beginning of the Basic Course.

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).

Will not a judge or appellate court hold the government accountable, despite favorable government appellate rules of no prejudice and overwhelming evidence of guilt? Perhaps Wood is a case where the appellate courts can make a stronger statement than ‘don’t do it again.’

I. WHETHER THE GOVERNMENT’S EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR RAPE WHERE,INTER ALIA, THE ALLEGED VICTIM TESTIFIED THAT SHE WAS NOT DRUNK BUT THE PROSECUTOR ARGUED IN CLOSING THAT SHE WAS ACTUALLY EXTREMELY DRUNK AND, THEREFORE, COULD NOT CONSENT. II. WHETHER IN A PROSECUTION FOR RAPE, APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE GOVERNMENT ADVANCED MULTIPLE INCONSISTENT THEORIES PRIOR TO AND AT TRIAL: 1) THAT THE ALLEGED VICTIM WAS NOT INCAPACITATED AND DID NOT CONSENT; 2) THAT THE ALLEGED VICTIM WAS NOT DRUNK BUT WAS INCAPACITATED AS A RESULT OF BEING DRUGGED BY APPELLANT AND THEREFORE COULD NOT CONSENT; AND 3) THAT THE ALLEGED VICTIM WAS SO DRUNK THAT SHE WAS INCAPACITATED AND COULD NOT CONSENT. III. WHETHER APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHERE THE PROSECUTION SUPPRESSED PHOTO AND TESTIMONIAL EVIDENCE FAVORABLE TO THE DEFENSE THAT WAS MATERIAL TO BOTH GUILT AND PUNISHMENT. IV. WHEHTER THE GOVERNMENT’S EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR WRONGFULLY PROVIDING A PERSON UNDER THE AGE OF TWENTY-ONE AN ALCOHOLIC BEVERAGE.

Thanks to CAAFLog for catching this oral argument in United States v. Wood, at NMCCA. See earlier posts:

Prosecutors still playing games with discovery.

Discovery issues.

Prosecution failure to provide credibility related discovery on their witnesses.

More on discovery.

Do military (DoD) lawyers know the meaning of “Brady material?”

The Prosecutor’s Gamble.

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, 144 L. Ed. 2d 286, 119 S. Ct. 1936 (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.

When requesting Production under R.C.M. 405(f), the standard can be considered, in my view, broader than at trial. R.C.M. 405(f)(10) requires production of items, “within the control of military authorities.” Here are a few relevant non-military cases.

United States v. Bailleux, 685 F.2d 1105, 1113 (9th Cir. 1982) (tape in custody of F.B.I. is deemed to be in custody of United States Attorney); United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980) (information in files of federal agency is deemed to be in possession of prosecution); United States v. Jackson, 780 F.2d 1305, 1308, n.2 (6th Cir. 1986) (F.B.I.’s knowledge is attributable to prosecutor); Martinez v. Wainwright, 621 F.2d 184, 186 (5th Cir. 1980) (rap sheet in medical examiner’s file is deemed in custody of prosecution).

Just exchange CID, OSI, NCIS, CGIS, for FBI, for this all too frequent objection by the Government Representative at an Article 32, UCMJ, hearing. I’m at a loss to understand GR arguments that such items are “not available” within the meaning of R.C.M. 405(g) because they are with CID, OSI, NCIS, or CGIS.

From time to time the military judge will excuse the prosecution because of inexperience. If the TC argues such or the military judge raises that, consider citing to United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).

In Smith v. Phillips, 455 U.S. 209, 219 (1982), the Court opined that “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Accordingly, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness. Id. at 220. In stressing assistant trial counsel’s inexperience and nervousness, as well as the unintentional nature of the assistant trial counsel’s errors, the military judge in this case misdirected some of his attention to the personal culpability of the prosecutor.

My, perhaps ancient at this point, recollection is that we were taught “discovery” at Naval Justice School, so it can be considered in the Military Justice 101 category. I am not arguing that trial or defense counsel should never get the benefit of doubt as to accident, inexperience, or lack of intent when deciding performance issues that arise at trial. I am arguing the way trial counsel mistakes are evaluated according to Thompkins. What is the ultimate effect on the fairness of the trial.

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.

Marine Corps Times reports. I’ve commented early on about the potential discovery opportunity presented Major Hasan and his defense counsel, or at least the potential for litigation, if Congress (and DoD) persist in conducting public hearings, getting witnesses on record under oath, etc.

FBI agents who discovered Maj. Nidal Malik Hasan’s extremist ties before the Fort Hood massacre may not have had access to key Army records on the psychiatrist, U.S. Sen. Susan Collins said Tuesday.

Military.com reports. Welcome to the club Senator. Frequently the defense and trial counsel in specific cases don’t have access to complete or accurate military personnel records.

Major Hasan has been moved out of ICU. KWTX reports, as does ABC News.

Advocacy groups continue to call for an additional charge based on the death of a fetus.

In light of reports that Pvt. Francheska Velez was pregnant when she was shot and killed by Major Nidal Malik Hasan at Fort Hood Military Base, State Representative Phil King (R-Weatherford) has joined with 30 of his conservative colleagues in the Texas Legislature in calling for the United States Army to charge Hasan for taking the life of an unborn child, in addition to the existing thirteen charges of premeditated murder.

Reports Weatherford Democrat.

Charges to be dismissed in Major Hasan’s case. Wrong person accused.

In the case of Maj. Nidal Malik Hasan and the Fort Hood massacre, the verdict has come in. The liberal news media have been found guilty — by the conservative news media — of coddling Major Hasan’s religion, Islam.

So reports the New York Times

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.

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.

Stars & Stripes reports: Fort Hood slayings prompt full Pentagon review

Washington Post reports:

Gen. George W. Casey Jr., the Army’s chief of staff, is forming a panel to look closely at the military career of Maj. Nidal M. Hasan, the man accused in the Fort Hood shootings, and probe whether warning signs were missed, a senior Army official said Monday.

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.

Typically the prosecution will play its cards and discovery very close to the chest at this stage of the case, despite the liberal requirements of R.C.M. 405(f).

Here however it appears that Major Hasan, Mr. Galligan, and the defense team on the court-martial case at Fort Hood will be getting the assistance of the Congress to get discovery! Hopefully Mr. Galligan can get someone to sit in, watch, listen, and take notes. Also, any statements made to the committee by someone who later shows up as a witness at the court-martial would be discoverable.