In an issue-packed unpublished opinion in United States v. Hudgins, No. 38305 (A.F.Ct.Crim.App. Apr. 3, 2014) (link to slip op.), the Air Force CCA considers the tardy disclosure to the Defense of mental health records of an alleged victim of sexual assault, finding no prejudice in a case where the Government employed an in camera review of the records by the military judge to avoid its discovery obligation.
The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of abusive sexual contact, one specification of rape, one specification of forcible sodomy, and one specification of assault consummated by a battery, in violation of Articles 120, 125, and 128. He was sentenced to confinement for eleven years, a reprimand, and a dishonorable discharge.
The charges involved encounters with two female airmen, DB and PS. The appellant and DB had a pre-existing sexual relationship, but she claimed that he forcibly raped her while she was sleeping with him in her bed. DB made this allegation within a day of the encounter. The allegation by PS involved an encounter that occurred before the encounter with DB, but PS did not report it until after being encouraged to do so by her boyfriend and after seeking counseling.
The Defense sought production of the active duty mental health records of PS. Such records are generally privileged against disclosure (to either side) under Military Rule of Evidence 513.
Defense counsel sought several pieces of information they believed were contained in the mental health records, including “where she talks about issues with her current boyfriend.” The defense asserted this information was relevant and necessary because it would further the defense theory that A1C PS reported the sexual assault because her boyfriend might surmise it was consensual if she did not report it, possibly jeopardizing the relationship. The Government opposed producing her mental health records. The military judge reviewed A1C PS’s mental health records in camera and determined none of the mental health records were relevant, at least in regard to findings.
Slip op. at 6. The Defense also sought production of records related to prior statements PS might have made about sexual abuse that contradicted her in-court testimony during a pre-trial motions session. Slip op. at 9.
After the appellant was convicted, a Government expert psychologist testified about post-traumatic symptoms exhibited by both victims. In particular, the psychologist “testified that he had interviewed or examined both A1C PS and A1C DB, and testified that both Airmen exhibited many symptoms consistent with PTSD.” Slip op. at 9-10. As a result, the military judge determined “that the Government had placed the mental health of A1C PS and A1C DB at issue in sentencing proceedings, and therefore he planned to disclose certain records to the defense.” Slip op. at 10. But first the judge allowed DB to testify in sentencing. Then he provided records to the Defense that included information about prior allegations of sexual assault made by PS. Slip op. at 10. The basis for the jude’s disclosure to the Defense was “a possible contradiction” with the pre-trial motions testimony by PS, “potentially providing a basis to impeach her.” Slip op. at 10.
Upon reviewing the records, the Defense moved for a mistrial.
The military judge determined a possible contradiction was raised and the information should have been made available to the defense in findings. He then considered and rejected the defense’s motion for a mistrial, finding a less drastic remedy was available and appropriate. He ruled that under Rule for Courts-Martial (R.C.M.) 924(c), it was appropriate for him to reconsider his findings and allow the defense to reopen its case in findings and present additional information.
Slip op. at 10. The military judge then reopened findings, heard additional testimony (including Defense cross-examination of PS), heard new closing arguments from both sides, deliberated, and again convicted the appellant of the offenses. The judge then made a statement about his findings, saying in part:
I had the opportunity to observe both the accused and [A1C PS’s] demeanor on the stand as well as consider all inconsistencies, motives to fabricate, all evidence either supporting or contradicting the two differing accounts and at the end of the day I was firmly convinced of the accused’s guilt beyond a reasonable doubt. Had I not been re-convinced of the accused[’s] guilt I would have found him not guilty but, I was.
Slip op. at 11.
On appeal the Defense asserted three errors in the military judge’s denial of the defense motion for a mistrial:
(1) The military judge erroneously permitted the Government to call A1C DB as a sentencing witness before disclosing records to the defense and reconsidering his findings;
(2) By denying the motion for a mistrial, the military judge countenanced “sandbagging” by the Government in withholding evidence of A1C PS’s and A1C DB’s mental health information from the defense until sentencing; and
(3) The military judge’s remedy of reconsidering his findings did not address harm to the defense in preparing its case.
Slip op. at 11 (paragraph marks added).
The CCA acknowledges that “once the military judge noted the mental health condition of A1C PS and A1C DB had been placed at issue, he should have provided the records at that point instead of allowing A1C DB to testify in sentencing.” Slip op. at 12. However, it finds that the judge did not abuse his discretion by denying the Defense motion for a mistrial, noting that the Defense made a significant concession at trial:
There is no reason to believe the defense was in any way hampered by not having received the information in A1C PS’s mental health records earlier. In fact, at the conclusion of the defense’s reopened case in findings, the military judge asked trial defense counsel, “[h]ad this information been provided earlier, is this everything that you would have done in the presentation of your case?” Trial defense counsel responded, “[y]es, this is what we would have done if we had known this information.”
Slip op. at 12. Notably, the Defense also did not recall DB for additional cross-examination after the military judge reopened the findings. Slip op. at 12-13.
The CCA also rejects the allegation of sandbagging, concluding that “there is no reason to believe the Government was aware of the inconsistency between A1C PS’s testimony in motions practice and the mental health records.” Slip op. at 12. This seems like a significant misstatement of the law. While “Brady liability is not strict,” United States v. Boyd, 208 F.3d 638, 645 (7 Cir. 2000), it does include material that is constructively possessed by the prosecution. See, e.g., United States v. Risha, 445 F.3d 298, 303-306 (3rd Cir. 2006). See also Robert Hochman, Brady v. Maryland and the Search for Truth in Criminal Trials, 63 U. Chi. L. Rev. 1673, 1679-1683 (1996) (discussing constructive possession from the perspective of the same-sovereign, the prosecution team, the availability of the evidence to the prosecutor, and the availability of the evidence to the defense).
The CCA doesn’t state whether or not the trial counsel in this case actually reviewed the mental health records before providing them to the military judge for in camera review, but the records were undeniably in the possession of the Government and were presumably reviewed by the Government expert witness (a psychologist who also interviewed/examined the victims). The trial counsel also presumably discussed the victims’ mental health with the victims and with the psychologist prior to trial (a privileged topic that the victims further presumably consented to being disclosed – this is somewhat reminiscent of the clergy privilege issue that led to CAAF’s reversal in United States v. Jasper, 72 M.J. 276 (C.A.A.F. 2013) (CAAFlog case page)). While there are a lot of presumptions in these comments, I think them all reasonable.
Moreover, the allegation by PS was a he-said/she-said type of claim, making her credibility critical factor. For this reason alone, I think the CCA’s observation that there is no reason to believe that the Government was aware of the inconsistency between what PS told her mental health providers and her testimony misses the mark. The issue in this case is what the Prosecution should have known.
Ultimately, however, the CCA affirms the findings due to an absence of prejudice:
Despite the unusual procedural matters that led to this issue, the appellant received a fair trial, and the military judge’s comments following the re-announcement of findings confirm the appellant received the full benefit of the presumption of innocence upon reconsideration, just as he did in the initial findings phase. Reconsideration of findings by a military judge is a permissible option when information is raised that may cause the military judge to question the findings. We are fully satisfied that any error in failing to earlier provide the defense with the mental health record excerpts was cured when the military judge reopened the case and reconsidered the findings, again applying the proof beyond a reasonable doubt standard to determine the appellant’s guilt. We see no reasonable possibility that earlier disclosure of this information would have affected the outcome of the trial. We therefore deny the appellant relief on this issue.
Slip op. at 13. This conclusion might be unavoidable because of concessions made and actions taken by the Defense at trial, but it’s hardly a model for future cases. The military judge failed to disclose exculpatory information to the Defense until after the appellant was convicted, and then employed a rather obscure procedural provision to permit a belated re-litigation of the case. The judge then made an unusual and self-serving pronouncement about his deliberative process. Notably, the judge didn’t even make the tardy disclosure for one of the reasons the Defense originally requested it – he felt that the mental health of PS was put in issue by the Government’s sentencing case, not by her inconsistent pre-trial testimony or by her relationship with her boyfriend. It’s hard to understand why the CCA would ratify this conduct.
But I think the CCA’s conclusion on prejudice betrays the real flaw in the court’s approach to this issue. The Government functionally shifted its affirmative disclosure obligation to the military judge. The Prosecution didn’t hesitate to use the mental health of PS to support its case against the appellant by presenting the testimony of a psychologist in sentencing, but when the Defense sought equal access in advance of trial, the Prosecution demurred and let the judge guess at how the case would unfold. The CCA overlooks this fact, and provides a roadmap for future prosecutions to employ the same dubious technique of putting the judge on the spot.
While the CCA employs a characterization of “unusual procedural matters that led to this issue,” I just don’t agree. There’s nothing unusual about the well-settled requirement for the Government to disclose “evidence favorable to the defense.” R.C.M. 701(a)(6).