In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

In an en banc published opinion in United States v. Hawkins, No. 20120070, 73 M.J. 605 (A.Ct.Crim.App. Apr. 18, 2014) (link to slip op.), the Army CCA considers the appellant’s pleas of guilty to offenses including the wrongful manufacture of methamphetamine in violation of Article 112a, UCMJ. The appellant purchased pseudoephedrine for a fellow soldier who was living with him in his on-base residence, knowing that it was for use in the production of methamphetamine. The appellant then reported the activity and consented to a search of his residence, where a makeshift methamphetamine lab was discovered. He eventually agreed to plead guilty to the wrongful manufacture of one gram of methamphetamine, and to possessing synthetic cannabinoids in violation of a general regulation.

But after his trial, the appellant encountered the other soldier – PFC BB – while in confinement. PFC BB was tried after the appellant, and he was convicted of only attempted manufacture of methamphetamine because (he claimed) he wasn’t successful in producing any actual methamphetamine. “By the time appellant learned this information from PFC BB, the convening authority had already taken action on appellant’s case.” Slip op. at 3.

So the appellant sought relief from the CCA, asking the court “to consider materials outside his record of trial, but within PFC BB’s record of trial, to determine whether the government possessed exculpatory information or not.” Slip op. at 3. The materials include a non-verbatim transcript of an Article 32 pretrial investigation in PFC BB’s case. The transcript indicates that a government agent testified, “no meth was revealed, just the precursors to create meth such as Sudafed,” but on cross examination added, “we are still unsure of [sic] what [PFC BB] had at the scene was meth.” Slip op. at 4. Additionally, the Government stipulated in PFC BB’s case that the substance created was not methamphetamine. And while the substance was tested:

The actual laboratory results are not included in the materials submitted to this court for review by appellant. Appellant submits that, to date, the government has not provided him the actual results of the laboratory drug tests. Appellate defense counsel has not asked this court to order such a disclosure. There is nothing in appellant’s record of trial or appellate filings to suggest that appellant requested discovery of such evidence before, during, or after his court-martial.

Slip op. at 4. The appellant seeks dismissal of the 112a offense. The en banc CCA (with only Judge Krauss dissenting) finds that “under the facts of this case, a Brady violation occurred in that the government, prior to convening authority action, had in its possession exculpatory information material to guilt or punishment that it did not disclose. As such, we provide relief in our decretal paragraph.” Slip op. at 5. The relief is to affirm only the lesser included offense of attempted manufacture of methamphetamine. Slip op. at 12. Reassessing the sentence, the CCA provides no additional relief.

The reasoning of the CCA’s decision, authored by Judge (Colonel) Campanella, is notable in a few respects, as is the reasoning of Judge (Colonel) Krauss’ dissent.

Judge Campanella begins her opinion of the court by discussing the application of Brady to post-trial discoveries:

[I]n 2009, the Supreme Court found the government does not have a continuing Brady obligation post-conviction, and the Constitution does not require states to turn over evidence post-conviction for DNA testing. District Attorney’s Office for Third Judicial District v. Osborne, 557 U.S. 52 (2009). The Court reasoned that Brady provides no support for such a constitutional right and that “‘once a defendant has been afforded a fair trial and convicted . . . the presumption of innocence disappears.’” Id. at 69 (quoting Herrera v. Collins, 506 U.S. 390, 399 (1993)). The convicted have “only a limited interest in post-conviction relief.” Osborne, 557 U.S. at 69.

Slip op. at 7. However, she distinguishes Osborne on the basis that it involved a post-conviction collateral attack of the conviction. She further distinguishes this case because the conviction is not yet final (and noting that the relevant time period is before the convening authority acted; with discussion of the unique role of a convening authority). She also notes a recent decision of the Seventh Circuit that found that “the government’s Brady obligations ‘remain in full effect on direct appeal and in the event of retrial because the defendant’s conviction has not yet become final, and his right to due process continues to demand judicial fairness.'” Slip op. at 8 (quoting Fields v. Wharrie, 672 F.3d 505, 515 (7th Cir. 2012)). She concludes:

Here, the government had in its possession presumably exculpatory laboratory results during the pendency of appellant’s R.C.M. 1105 and 1106 submission which it did not provide to appellant or the CA. This new information suggested appellant may have been not guilty of a charge of which he was found guilty. This exculpatory evidence, in the possession of the government before convening authority action, should have been turned over to the defense to allow them the opportunity to present it to the convening authority.

Slip op. at 11. A footnote explains that the CCA “must presume, although we are unable to confirm, [that] the laboratory results were exculpatory because the government still has not disclosed the results.” Slip op. at 11 n.9. With this presumption, the majority finds that “there is a reasonable probability of a different result had the information been disclosed and presented.” Slip op. at 12. Accordingly, the CCA approves only a conviction of the lesser included offense of attempt to manufacture methamphetamine.

But Judge Krauss dissents. While he “agree[s] that Brady disclosure requirements apply post-trial through the completion of direct appeal that ends with the Supreme Court,” slip op. at 14, he doesn’t see this as a Brady issue. Rather:

Because here the appellant decided to plead guilty without the benefit of full discovery, failed to request discovery of the type of material at issue, and failed to discover the material himself despite the fact that such evidence was readily discoverable, the question is not whether and how he obtains relief for any ostensible Brady violation but whether his defense counsel was ineffective.

Slip op. at 14 (Krauss, J. dissenting). “[U]under circumstances such as those present in this case, an appellant’s Constitutional rights to the fairness and integrity of his convictions and sentence are enforced through the Sixth Amendment guarantee of the effective assistance of counsel, not the Fifth Amendment Due Process Clause.” Slip op.a t 17 (citation omitted).

To the extent the Brady rule applies after acceptance of a provident guilty plea, where an appellant fails to specifically request discovery of such material and fails to obtain and exploit the matter himself when it is readily available for discovery, he surrenders opportunity to fix blame on the United States for what might otherwise warrant relief.

It is plain from this record that a reasonably diligent defense counsel could have readily obtained the information about which appellant now complains. . . . It appears from the record and the affidavit of appellant’s counsel that they both simply presumed the substance was methamphetamine without thinking much further about it (there was apparently at least a field test that showed positive for methamphetamine), as appellant now presumes it was not methamphetamine based on the related proceedings discussed.

Slip op. at 17-18. Concluding the appellant does not claim IAC, and that the case does not present “a cognizable Brady violation claim,” slip op. at 19, Judge Krauss dissents.

If there’s a practical lesson in the facts of this case, I think it a simple and obvious one: When there is evidence (like lab results) that is dispositive of an issue in the case, the defense should request it and the prosecution should disclose it, even if that disclosure occurs after a guilty plea, and even if that disclosure changes nothing.

6 Responses to “The Army CCA grants relief for a Brady violation”

  1. stewie says:

    Not sure what I think of the dissent yet.  Seems to me a dangerous road to place responsibility for Brady material on the defense or to suggest that Brady is lessened by a guilty plea.  I do appreciate his willingness to find DC ineffective, which I think happens way too rarely, but not sure this is the case to do it.  Regardless, the end result of fixing the conviction seems correct.

  2. Dew_Process says:

    @ Stewie – I understand where you’re coming from and I was there a few weeks ago until I started researching the issue for one of my cases.  The majority opinion here however, is far from a model of clarity or accuracy in its legal analysis.  First of all, Bradydoes not deal solely with “exculpatory” evidence as the majority implies.  Rather, Brady addresses a broader concept, viz., “favorable evidence.” Indeed, the term “exculpatory” is no where mentioned in the majority opinion in Brady itself.   Second, while Brady (and its progeny) stands for the proposition that the Due Process clause mandates the timely disclosure of “favorable” material, i.e., a free-standing obligation by prosecutors to both learn of and disclose such favorable evidence, when the Defense fails to make a demand for such, the “prejudice” to Due Process rests equally upon the shoulders of the prosecution and defense counsel.
    There has been scholarship on the applicability and scope of Brady at the plea-bargaining state in the last few years.  See, e.g.,
    Under the specific facts of this case, i.e., the total failure of the DC to seek discovery on the key issue for the affected Specification, coupled with the fact that the TC did disclose one document from the civilians indicating that the substance was meth, that Judge Krauss’s (lone) dissent was / is the better analysis.  The MORAL  for Defense Appellate practitioners is that one should frame both the Fifth Amendment Brady/ fair trial issue, as well as the Sixth Amendment IAC issue to CYA.

  3. stewie says:

    I find it hard to believe that a standard defense discovery request wasn’t done in this case requesting any and all material under Brady.  So why wouldn’t that be sufficient to “make a demand for such?” It’s not clear to me that no specific discovery request  made for the relevant material is the same as saying no request was made for Brady material.  I would think a general request would be sufficient, even if it didn’t specify in a certain area.
    Perhaps that’s the case law, you’ve done the research, I have not, but I still have to question (because I’m a lawyer, and that’s what we do).  Suppose the hypo where the government knows that someone else has confessed to the crime (and it’s known to CID, and a few quick questions by DC would reveal the other confessor).  Defense doesn’t ask for evidence of other “confessors” in their discovery request, or place any boilerplate language about Brady material, and they don’t come across it during trial.
    In such a scenario, apparently your research shows both sides bear equally the prejudice to due process…but in reality, we’d ALL be talking about the government in that situation, not the defense. I can think of all sorts of Brady areas where a reasonably diligent defense counsel would get the material, but does that truly wholly relieve the government’s burden or does it merely implicate the defense counsel as ineffective in addition to the government violating Brady?
    I’m not sure that applying civilian post-conviction/plea bargaining law works for the military process, as Judge Campanella I believe correctly notes, our process and case law is different.  How we do appeals are also different as we mix collateral and direct all together as opposed to bifurcated like the civilian world (minus Idaho).  There’s also the clemency process (again as Judge Campanella notes). I’d note that Judge Krauss agrees that Brady applies through direct appeal in his first sentence of his dissent, but then seems to say “but not fully.”
    At any rate, I get your final point: DC should have made sure to include in the discovery request a request for Brady material if he/she did not, and appellate counsel should be sure to encompass both the 5th and 6th Amendment in these cases to capture both due process arenas.  Not sure I agree that Judge Krauss’ analysis was the better one, although, all of the folks up there are pretty smart, including Col Krauss, smarter than me (or I) by far, so being wrong is a distinct possibility.

  4. Zachary D Spilman says:

    Maybe an IAC claim fails because the deal involved a deliberate tactical decision by the defense to proceed without the test results in order to avoid more serious charges. 

    Along similar lines, I’m waiting for CAAF to reject the argument advanced by the appellant in United States v. Elespuru, No. 14-0012/AF (CAAFlog case page), that when counsel affirmatively states something but is wrong on the applicable law, that affirmative statement can’t constitute a waiver of error (but also isn’t IAC).

  5. Dew_Process says:

    @ Stewie – first of all, you’d be amazed that the number of times that no “Discovery Demand” is in the Record of Trial.  Doesn’t mean that one wasn’t done, but somehow never made it to the Allied Papers.  Second, making a discovery demand to the government, while better than nothing, may not be enough, and without a Motion for App Relief to Compel Discovery / Brady / Giglio / Kyles material, may be insufficient to preserve the issue for appeal.  I should have made my point more clearly. Making the demand to TC is not the same as seeking judicial relief, and the argument that one faces then is, “well, if DC didn’t seek judicial relief prior to trial, what’s the basis for seeking it post-trial?
    The ACCA here noted:

    In a case in which the defense either did not make a discovery request or made only a general request for discovery, appellant will be entitled to relief only by showing that there is a “reasonable probability” of a different result at trial if the undisclosed evidence had been disclosed.

    See also, U.S. v. Coleman, 72 M.J. 184, 187 (CAAF 2013)[same], but also discusses the difference a “specific request” makes in how the Court approaches the error.
    As to your hypothetical, whether or not the defense makes any type of Discovery Demand or subsequent Motion to Compel, in that scenario, the government clearly has a duty under Brady [and Kyles ] to disclose the “favorable information” viz., that someone else has confessed, to the defense.  The facts in Hawkins were slightly different – the TC gave the defense what purported to be a lab report from the civilian authorities concluding that there was actual meth.  Apparently at that time, the Government concluded that it had complied with its discovery obligations (as did apparently the DC), but thereafter learned prior to the trial of one of the co-D’s that at best, it was an attempt as no actual meth was ever actually made — that was not disclosed until after the CA had acted.

  6. Zachary D Spilman says:

    Skipping over the question of the quantitative difference between the tests of “harmless” and “harmless beyond a reasonable doubt,” there’s a contradictory passage in Coleman:

    The failure of the trial counsel to disclose evidence that is favorable to the defense on the issue of guilt or sentencing violates an accused’s constitutional right to due process. The Supreme Court reviews all such cases for harmless error — whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.

    A military accused also has the right to obtain favorable  evidence under Article 46, UCMJ, 10 U.S.C. § 846 (2006), as implemented by R.C.M. 701–703. This Court has held that Article 46 and its implementing rules provide greater statutory discovery rights to an accused than does his constitutional right to due process. As a result, we have established two categories of disclosure error: (1) cases in which the defense either did not make a discovery request or made only a general request for discovery; and (2) cases in which the defense made a specific request for the undisclosed information. For cases in the first category, we apply the harmless error standard. For cases in the second category, we apply the heightened constitutional harmless beyond a reasonable doubt standard

    United States v. Coleman, 72 M.J. 184, __, slip op at 6-8 (C.A.A.F. 2013) (marks and many citations omitted) (emphases added) (CAAFlog case page) (link to slip op.). The failure to disclose is a constitutional error on its own, but the existence of a discovery request affects the burden on appeal?

    Notably, one of the omitted citations in the above excerpt from Coleman is to the recent SCOTUS decision in Smith v. Cain, 132 S. Ct. 627 (2012) (Oyez case page), in which the Chief Justice (writing for an 8-justice majority) explained:

    Under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punish­ment. See 373 U.S., at 87, 83 S.Ct. 1194. The State does not dispute that Boatner’s statements in Ronquillo’s notes were fa­vorable to Smith and that those statements were not dis­closed to him. The sole question before us is thus whether Boatner’s statements were material to the determination of Smith’s guilt. We have explained that “evidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been dis­closed, the result of the proceeding would have been dif­ferent.” Cone v. Bell, 556 U.S. 449, 469-470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence, ” only that the likelihood of a different result is great enough to “undermine confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted).

    Smith, 132 S.Ct. at 630, slip op. at 2-3. Defining “material” evidence for Brady purposes as that which creates “a reasonable probability that, had the evidence been dis­closed, the result of the proceeding would have been dif­ferent” is just a different way of saying that the failure to disclose is not harmless. So (without doing a thorough survey of this issue) I don’t see that a true Brady violation can ever be harmless.

    Speaking of “a true Brady violation,” that is a term with meaning:

    Within the federal system, for example, we have said that the United States Attorney is “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935).

    This special status explains both the basis for the prosecution’s broad duty of disclosure and our conclusion that not every violation of that duty necessarily establishes that the outcome was unjust. Thus the term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called “Brady material”—although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

    Strickler v. Greene, 527 U.S. 263, 281-282 (1999) (emphasis added) (Oyez case page).