CAAF will hear oral argument in United States v. Coleman, No. 13-0007/AR, on Tuesday, March 12, 2013, at 9:30 a.m. The court granted review of the following issue:
Whether the military judge erred in failing to grant a defense motion for mistrial based on the trial counsel’s failure to disclose that appellant’s co-accused testified against him in exchange for the staff judge advocate’s recommendation that his sentence be reduced by twelve months.
In 2010 the Appellant, an E-4 in the Army, was convicted contrary to his pleas by a general court-martial composed of members with enlisted representation of rape and adultery, in violation of Articles 120 and 134, UCMJ. He was sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved only five of the ten years of confinement.
The case began – as so many do – during a night of drinking. The Appellant and a co-accused [PFC Pilago] eventually had a sexual encounter with the female victim, [D.D.]. “At trial, the Appellant faced alternative theories of criminal liability for his conduct towards D.D. The prosecution argued that D.D. was either too incapacitated to consent to sexual intercourse or that appellant forced D.D. to engage in sexual intercourse ‘by using strength and power sufficient that she could not avoid or escape the sexual contact.’” App. Br. at 3.
The day before the Appellant’s court-martial, PFC Pilago was convicted, contrary to his pleas, of forcible sodomy and adultery for his actions with D.D. PFC Pilago was sentenced to confinement for 42 months and a dishonorable discharge. He was then called as a prosecution witness in the Appellant’s court-martial, where he confirmed that during the assault of D.D. he told the Appellant that “she said stop,” but that the Appellant told him “just to keep going.”
However, “immediately prior to calling PFC Pilago to the witness stand, defense counsel specifically asked government counsel if there was a deal in place with PFC Pilago. The trial counsel responded ‘No, there’s nothing in writing.’ The military judge noted that he found trial counsel’s response ‘troubling.’” App. Br. at 5 (citations to record omitted). After the Appellant was convicted, the trial defense counsel learned that PFC Pilago testified in exchange for the staff judge advocate’s recommendation that the convening authority reduce his sentence by 12 months.
A post-trial 39(a) session was conducted, and the military judge concluded that the trial counsel had failed to disclose the agreement between PFC Pilago and the convening authority, and that the agreement was “favorable and material to the defense trial preparation and should have been disclosed.” App. Br. at 9. However, the military judge found that this error was harmless beyond a reasonable doubt, and he denied a defense motion for a mistrial.
Among the considerations was an incriminating statement PFC Pilago gave to criminal investigators shortly after the assault. That statement was consistent with his testimony at the Appellant’s trial. Additionally, the trial defense counsel actually called PFC Pilago as a defense witness to testify that D.D. was not incapacitated and that he and the Appellant had engaged in consensual sexual contact with her earlier that evening. Finally, the trial defense counsel did not impeach PFC Pilago on any grounds. Considering these factors, and particularly that PFC Pilago’s statement to criminal investigators was consistent with his trial testimony for the prosecution, the ACCA found:
If the requisite disclosure had been made by the government and the trial defense counsel had chosen to impeach PFC Pilago by asking him if he was providing his in-court testimony in exchange for the clemency agreement, we have no doubt the government would have been successful in introducing PFC Pilago’s prior consistent statement under Mil. R. Evid 801(d)(1)(B). The statement was consistent with PFC Pilago’s in-court testimony and was made more than nine months prior to PFC Pilago’s conviction and his agreement with the SJA. Furthermore, if admitted under Mil. R. Evid 801(d)(1)(B), the detailed incriminating written statement would have constituted substantive evidence that could have been used against appellant to further corroborate DD’s allegations against appellant.
Having been presented with no plausible scenario in which we believe appellant ultimately would have been benefited by the use of the agreement to attack the credibility of PFC Pilago, we agree that the government met its burden of showing that the failure to disclose the agreement was harmless beyond a reasonable doubt.
United States v. Coleman, No. ARMY 20100417, slip op. at 7-8 (A.Ct.Crim.App. Jul. 9, 2012) (mem. op.) (citations omitted).
The briefs to CAAF discuss alternative theories of what might have happened had the trial counsel disclosed the existence of the agreement with PFC Pilago, while both sides acknowledge that it was error for the trial counsel to fail to make this disclosure. Predicting what might have been is particularly difficult in this case, as the trial defense counsel also called PFC Pilago as a defense witness to present testimony that supported the defense case, making his credibility a question of dubious value for both sides. At the post-trial 39(a) session, the military judge considered this fact and the fact that the trial defense counsel did not impeach PFC Pilago in other ways (such as bias to minimize his own criminality). Addressing these factors to CAAF, the Appellant’s brief argues that:
Had defense counsel known a deal was in place, he would have been able to weigh his tactical options in a meaningful and informed manner. Instead, he made a tactical decision based on incorrect information, which can hardly be called a tactical decision at all. In addition, any discussion of PFC Pilago’s conviction, without use of a clemency agreement, carried the risk of suggesting to the panel that the appellant, as a co-actor in the same incident, should also carry a federal conviction for his conduct.
App. Br. at 17-18. A key component of this argument is the Appellant’s position that “PFC Pilago’s motive to fabricate is only relevant to his testimony in support of the prosecution’s case; he had no motive whatsoever to provide misleading testimony for the defense.” Id. at 19. Of course, there was also PFC Pilago’s pending appeal for his convictions contrary to his pleas, and the Appellant’s brief seems to discount the possibility that PFC Pilago will say anything to anyone in order to reduce his own culpability. On one hand he tells the prosecution that he tried to stop the Appellant, and on the other hand he tells the defense that the victim wasn’t that drunk and had consented to earlier contact.
The Government’s brief sticks to the point of harmlessness, though it does so in the context of arguing that the Appellant’s “claim fails because the undisclosed evidence was not ‘material’ in such a way to have reasonably affected the outcome at trial.” Gov’t Br. at 18. The Government’s brief discusses the admissibility – as substantive evidence for the truth of the matter asserted – of PFC Pilago’s prior statement had he been impeached by the trial defense counsel. The Government’s brief also argues that there are facts that “show that defense counsel had a firm hint that PFC Pilago and the SJA were coming to an agreement.” In other words, the Government points the finger back at the Appellant’s counsel…
After the agreement between PFC Pilago and the Staff Judge Advocate was reached, the assistant trial counsel sought to interview PFC Pilago. When the assistant trial counsel arrived, he found PFC Pilago being interviewed by trial defense counsel. After trial defense counsel finished his interview, assistant trial counsel proceeded to interview PFC Pilago in preparation for appellant’s court-martial. The assistant trial counsel was under the impression that trial defense counsel already knew about the oral agreement. While it is admittedly troubling that assistant trial counsel responded, “No, there’s nothing in writing,” to trial defense counsel’s inquiry, there is little doubt that trial defense counsel could have asked for a recess and further question PFC Pilago about the status of negotiations.
Gov’t Br. at 28-29. “Admittedly troubling” is an awfully nice way of characterizing the lack of candor exhibited by this uniformed judge advocate serving as a federal prosecutor. What ethical code allows a prosecutor to do anything less than affirmatively disclose the existence of a deal with a cooperating witness?
In a short reply brief, the Appellant responds by attacking the notion that the trial counsel would have used the prior consistent statement of PFC Pilago had the defense impeached his testimony with the clemency agreement, because “not until the government’s final written submission to the court on January 12, 2011, seven days after the post trial Article 39(a), UCMJ, does the government first raise the notion of using the prior statement.” Reply Br. at 2. However, just as it’s impossible to know what the defense counsel would have done at trial had he known of the clemency deal, it’s equally impossible to know what the trial counsel would have done in response. Moreover, while the court might normally presume that counsel know the rules and would use them to the benefit of their case, the facts of this case indicate otherwise…
It’s hard to make a prediction in a case like this, where the facts are complicated and the issue is ultimately a question of witness credibility in the eyes of the members. This case is also complicated by the dual standards of review: the trial military judge’s denial of the defense request for a mistrial is reviewed under the highly-deferential abuse of discretion standard (clearly erroneous findings of fact, erroneous view of the law, or an unreasonable decision based on the facts and the law), while an accused is entitled to relief from the Government’s failure to disclose favorable evidence that was material unless the Government can show that the nondisclosure was harmless beyond a reasonable doubt.
But CAAF could use this decision to press the issues of prosecutorial ethics and judicial gate-keeping; both keen topic these days as court-martial prosecutions receive greater public and political scrutiny and military prosecutors are feeling the heat. Reverse or affirm, I suspect that the court will issue a stern warning about the prosecution’s affirmative duty to disclose evidence that is favorable to the defense, and the judiciary’s duty to remain independent and vigilant.