On Thursday (sorry for the delayed reporting, but both Zack and I were out of town), CAAF affirmed an Article 120 conviction in United States v. Coleman, 72 M.J. 184, No. 13-0007/AR (C.A.A.F. May 9, 2013).  Judge Stucky wrote for the majority.  Chief Judge Baker concurred in the result.  More on the disagreement between the chief judge and the rest of the court below.

The government violated its discovery obligations in the case, failing to let the defense know that the SJA had agreed to recommend that the CA reduce the setnence of Coleman’s co-actor in exchange for his testimony against Coleman.  The question that CAAF confronted was whether that error was harmless.  Yes, held CAAF.  Because the information was responsive to a specific defense discovery request, the harmless beyond a reasonable doubt test applies.  All five judges agreed that the discovery violation was harmless even under that elevated standard.

The majority’s decision was based, in part, on a prior consistent statement that the co-actor made before the SJA made his offer.  That prior consistent statement, the majority reasoned, would have substantially undercut the impeachment value of the SJA’s offer, since it was made before any resulting motive to fabricate arose.

Chief Judge Baker wrote separately, arguing that the majority shouldn’t have considered the prior consistent statement.  While the prior consistent statement was in the record as an appellate exhibit, it was never offered on the merits.  He reasoned, “I would not rely on evidence that was not admitted, and potentially not admissible, in determining whether the failure to disclose was harmless beyond a reasonable doubt.”  He argued, “[I]t seems speculative, if not unfair, for this Court to now incorporate this prior statement into its harmless error analysis.”

As often happens in CAAF opinions, the majority didn’t engage with the separate opinion’s reasoning.  So I will.  A harmless error determination for a discovery violation is necessarily counter-factual.  The majority’s approach of considering how the trial would have likely developed had the government complied with its discovery obligations strikes me as sound reasoning.

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