After being away from the office for a week, I was shocked to see a familar name in the news again upon my return. I first ran across Phillip Mills when I was an appellate counsel. Switching jobs with a circuit trial counsel (traveling senior prosecutor) temporarily, I found myself prosecuting a court-martial. Like many others I’d prosecuted and defended in the past, this one involved a sexual assault allegation. Unlike many of my previous cases, this one had DNA evidence. Yes, you’ve guessed which analyst at USACIL (US Army Criminal Investigation Laboratory) served as our expert witness at trial. Mills was a genial guy; I even shared lunch with him before his testimony, as I’d been assigned to the case late in the game and hadn’t met Mills before.
To make matters far worse, the evidence in a number of cases no longer existed by the time the lab began investigating Mills, so the magnitude of his errors will never be fully known. The thrust of the recent articles is that the investigation results weren’t provided to the individuals most affected by Mills’ work–the convicted military members and their attorneys. With only a 2-year post-convening authority action window in which to petition for a new trial based on newly discovered evidence under Article 73, UCMJ, after a court-martial conviction, the very belated release of this news makes the defense attorneys’ jobs even more difficult.
I was a tenacious prosecutor who felt no remorse in ensuring that lawbreakers paid for their crimes, but I have no use for those who believe it’s OK to cut corners when lives, freedom, and the integrity of the system are on the line. No one should have their conviction based on false evidence, particularly coming from an expert witness employed by DoD, and, when problems arise, a full probe of the problem and transparency are the best means of restoring faith in the system. (Anyone followed the work of the Dallas DA who espouses that motto? It’s fascinating.)