Graner was a high-visibility Abu Ghraib case. But as we know, high-vis is far from synonymous with “signficant” or “difficult.” CAAF easily affirms in Graner, concluding that evidence that either wasn’t disclosed to the defense or that the defense wasn’t allowed to present wasn’t relevant or wasn’t requested with sufficient specificity.
But there are a couple of fault lines between the majority and Chief Judge Effron and Judge Baker and those fault lines concern appellate procedure. Footnote 1 of the majority opinion observes:
Appellant and the Government have also submitted three outstanding motions related to this case. “The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals.” C.A.A.F. R. 30A(a). While we may remand for further factfinding if an issue concerning an unresolved fact affects the Court’s resolution of the case, C.A.A.F. R. 30A(c), none of the documents that either party seeks to submit into the record are necessary to resolve the issues of this case. As such, all three motions are denied.
Apparently one of the documents that the majority declined to accept was an affidavit from the assistant TC stating that he had provided a copy of a 2003 DOD Report at issue to the defense more than five months before the trial began. Chief Judge Effron considered the information from the affidavit and determined that since the affidavit was provided to the defense well before trial, there was no prejudice from the military judge’s failure to order the report’s disclosure to the defense during an Article 39(a) session before the government turned over the report. The majority doesn’t consider the information from the affidavit and concludes that the government wasn’t required to turn the report over to the defense.
Both Chief Judge Effron and Judge Baker would also look at documents that the defense moved to submit that the defense claims should have been but weren’t provided to the defense during the discovery process. After looking at those documents, Chief Judge Effron concludes they wouldn’t have made a difference. Judge Baker, on the other hand, dissents from the portion of the majority opinion denying the defense motion to submit those documents to CAAF and the portion of the majority opinion finding the they weren’t sufficiently identified by the defense’s discovery request. Judge Baker counters by asking how the defense could have identified these documents with greater specificity at the time of trial.
The central legal import of Graner is a warning to appellate counsel that any argument that depends on CAAF accepting evidence that isn’t already part of the record faces a significant hurdle.