ACCA’s decision in United States v. Trigueros has a lot of law in it. Judge Chiarella wrote for a unanimous panel.
In Trigueros, the defense had filed a discovery request asking for, among other things, all mental health records maintained by any provider concerning the alleged rape victim in the case. The trial counsel responded that the “Government is not aware of the existence of any such documentation regarding the records of the victims,” including the rape victim. It turns out that the TC was unaware of the existence of any such records because the TC never asked the alleged rape victim if she had attended mental health counseling. In fact, the alleged rape victim “had attended approximately four mental health counseling sessions following the rape incident.” The civilian defense counsel — and apparently the TC — learned this for the first time when the victim testified during the sentencing hearing. The military judge then ordered that the relevant records be produced. He allowed the defense to review the records and subsequently recalled the victim for questioning about them. The military judge concluded that the non-disclosure was harmless beyond a reasonable doubt, but sanctioned the government by refusing to permit the trial counsel to present any aggravating evidence, including victim impact evidence, in its sentencing case-in-chief.
On appeal, ACCA found that the trial counsel’s failure to disclose the requested records violated Article 46 and R.C.M. 701, even though it didn’t violate Brady v. Maryland. But ACCA agreed with the military judge’s ruling that the violation was harmless beyond a reasonable doubt. ACCA also shot down the civilian defense counsel’s argument that the evidence was relevant because it actually bolstered the prosecution’s case, which might have led the defense to cut a deal rather than contesting the case. ACCA held that the military judge properly denied a mistrial request. And ACCA rejected the defense’s argument that the military judge couldn’t objectively determine harmlessness since he had been the trier of fact who convicted the accused on the merits.
But Trigueros will no doubt be cited most often for its discussion of a trial counsel’s discovery duties. ACCA spanked the TC–and sent a message to all TCs–thusly:
We take this opportunity to reiterate the government’s duty with regard to the disclosure of evidence in response to specific requests by the defense. In this case, defense specifically requested “copies of any and all records . . . maintained by any health care provider, to include mental health care . . . for any sessions with either Mrs. [JLC] or Mrs. [SCR] . . . .” Though the government’s response that it was “not aware of the existence” of Mrs. SCR’s medical records in this case was technically true, it was only because trial counsel failed to actually ask Mrs. SCR if she had previously attended mental health counseling. Rule for Courts-Martial 701 requires the prosecution “engage in ‘good faith efforts’ to obtain the [requested] material.” Williams, 50 M.J. at 441; R.C.M. 701(a)(2). The “parameters of the review that must be undertaken outside of the prosecutor’s own files” depend on the specific relationship of the government entity and the defense request. Id. See also United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993) (“trial counsel must exercise due diligence in discovering [requested reports] not only in his possession but also in the possession, control, or custody of other ‘military authorities . . .’”). The government cannot intentionally remain ignorant and then claim it exercised due diligence.
In this case and others like it where there is no dispute over the relevance of the requested material, due diligence requires trial counsel to ask each victim whether she has attended any mental health counseling sessions, investigate the existence of any medical records, and obtain them, employing a subpoena or other compulsory process where necessary.
The preferred practice is for the military judge to inspect the medical records in
camera . . . prior to any government or defense access . . . Once reviewed, the
military judge makes a ruling either allowing access to both sides, or denying
access and resealing the records as an exhibit for appellate review.
United States v. Briggs, 48 M.J. 143, 145 (C.A.A.F. 1998).