We’ve made a few mentions (in posts here and here) about the use of Air Force Adademy cadets as undercover informants for the Air Force Office of Special Investigations. On Monday, CAAF ordered a DuBay (post-trial fact-finding) hearing in a case that appears to involve one such informant:

No. 14-0409/AF.  U.S. v. Stephan H. CLAXTON. CCA 38188. Review granted on the following issue:

WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT UNITED STATES AIR FORCE ACADEMY CADET ERIC THOMAS WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the discovery matter underlying the granted issue.  At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The AFCCA’s opinion in the case is available here. The court did not discuss the informant issue.

Mike mentioned the trial-stage proceedings in this case in this post from 2012, and he provided a link to this Colorado Springs Gazette report about the Article 32 investigation in the case.

3 Responses to “CAAF orders a fact-finding hearing in a case involving the Air Force’s use of cadets as confidential informants”

  1. Mark Hardman says:

    Two issues are at play here, both of which should be addressed. 1. Was the Brady violation harmless beyond a reasonable doubt. 2. Regardless of materiality, did the trial counsel negligently or willfully fail to disclose the information, and how will that counsel be sanctioned by the rules committee. My experience suggests that there will be institutional pressure not to file a complaint despite Model Rule 8.3.

  2. Zeke says:

    There’ll be interesting facts to come out of that Dubay hearing…  I wonder how they will jive with the findings of the IG’s investigation of that whole mess?