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.