AFCCA denies Government appeal of the dismissal of rape charges (after the Government refused to produce witness notes)
Back in June, in this post, Mike noted a media report about the dismissal of sexual assault charges in an Air Force general court-martial. At the time it appeared that the charges were dismissed due to prosecutorial incompetence, but precise details were slim. Then, in this September TWIMJ post, I noted a scheduled oral argument at the AFCCA for an an Article 62 appeal in the case.
Update (Oct. 8): A commenter noted that today the CCA posted the audio of the oral argument. It’s available here.
Last week the CCA issued its ruling in a published opinion. United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (link to slip op.). The court denies the Government’s appeal and affirms the judge’s ruling that dismissed – with prejudice – the charges of rape, forcible sodomy, and assault.
The CCA’s opinion provides lots of facts, revealing that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.
The accused is a Chief Master Sergeant (E-9) who is charged with three specifications of rape, one specification of forcible sodomy, and one specification of assault consummated by a battery, in violation of Articles 120, 125, and 128. All of the allegations involve the accused’s former wife, identified as Senior Master Sergeant (SMSgt) AB. “One charged rape allegedly took place in April 1994, while the other two allegedly occurred in close proximity in August 2008. The charged forcible sodomy and assault also allegedly occurred in August 2008.” Slip op. at 2.
Trial was scheduled to begin on June 2, 2014, with motions scheduled to be litigated just a few days before trial, on May 29, 2014. But the motions practice was contentious, including an issue involving the Defense’s disclosure of a large number of character statements:
[T]rial defense counsel submitted a voluminous amount of defense character statements shortly before trial. Seeing that several of the character statements referred to the appellee’s character for respect toward family, and given the lack of time available, trial counsel e-mailed the character letters’ authors, en masse, a link to the audio file of the pretext phone call recording [that was the subject of earlier litigation]. Trial counsel’s e-mail asked the recipients to review the audio file and then inform trial counsel if this material impacted their opinions of the appellee or their desire to maintain their character letters. Defense counsel complained both about trial counsel’s action of sending the e-mail without providing proper context and for not immediately disclosing recipients’ responses that the information did not change their opinion or affect their desire to submit character letters. (Trial counsel later provided these responses upon request by defense counsel.) At this same time, trial defense counsel also complained that it received untimely notice late on 1 June 2014 of prior statements or actions by the appellee under Mil. R. Evid. 304(d) and 404(b).
Slip op. at 2-3. The military judge ruled that the trial (Government) counsel failed to provide timely notice under Mil. R. Evid. 304(d) (statements by the accused) and 404(b) (other acts, etc.) and suppressed some evidence. But the judge denied a Defense request for an in camera review of the prosecution team’s notes, instead ordering the trial counsel:
to review one last time all records, including your notes, within your control or the control of related agencies. . . . I am ordering that you go over them one more time. This obviously includes not just your own notes but the notes of paralegals and others in there, and that you disclose anything that is possibly [R.C.M.] 701 and Brady material.
Slip op. at 3 (emphasis in original). The trial counsel conducted this review and then made additional disclosures regarding possible inconsistent statements by the alleged victim. But the trial counsel insisted that those disclosures were made “in an abundance of caution,” and that the Government was “erring on the side of over disclosure.” Slip op. at 4. The trial counsel “did not expressly concede that these items were Brady material that was required to be disclosed.” Id.
The judge felt differently.
After taking the testimony of a Government paralegal who attended witness interviews, the judge concluded of the additional disclosures:
There is no question, no question I can’t imagine in anyone’s mind, but certainly not in this court’s mind, that that is Brady material; that is classic first year prelaw Brady material.
Slip op. at 5. The judge then ordered the prosecution team “to provide its witness interview notes for an in camera review.” Slip op. at 5. In addition:
He noted that if he found additional Brady material in those notes, he intended to release this information to the defense. He then informed trial counsel that if it did not comply with the order, he would either dismiss the charges and specifications with prejudice or abate the proceedings. Alternatively, if the Government complied with the order, the military judge would perform the in camera review, provide any required material to the defense, and the court-martial would proceed.
Slip op. at 5.
But Government counsel refused to turn over the notes, asserting that the notes were privileged and asking for a continuance to seek appellate review.
The judge was not amused. First, he denied the continuance request:
Here’s a ruling on your continuance; you’re not getting a continuance for that. You have the material available; and I will state, and obviously counsel you’re entitled to look at the law as well, but it seems clear that this [in camera review] is what CAAF has anticipated in cases such as this. And so I think the in camera review is entirely appropriate.
Slip op. at 6 (modification in original). Then, when the Government persisted in its refusal to allow the judge to review the notes, the judge found that an abatement was inappropriate and dismissed the charges:
[F]inding he had “no confidence that the prosecution has complied with its discovery requirements, and the government is now prohibiting this court from ensuring a fair trial,” the military judge addressed the issue of an appropriate remedy. He found that the Government was still attempting to perfect its case on the eve of trial, that it was difficult to see how the interview notes could involve counsel’s deliberative process, and that there was no reason why an in camera review should not be conducted. The military judge noted dismissal with prejudice is “a nuclear option” and “not one that [he] take[s] lightly” but that “the simple fact is the government has been seeking a delay, and that delay will work to the detriment of the accused.” The military judge also found trial counsel committed prosecutorial misconduct by refusing to obey the military judge’s order for the in camera review, and he dismissed the charges and specifications with prejudice.
The military judge later issued a written ruling on this matter. His written ruling generally summarized the factual background of this issue and explored his rationale for his ruling in greater detail. In particular, he provided more analysis as to why dismissal with prejudice was the appropriate remedy instead of abatement or dismissal without prejudice. In part, he found that “the government was still perfecting its case, that the failure to perfect [its] case in the previous 10 months was without good cause, and that any delay would inure to its benefit.” Therefore, an abatement was not appropriate because it would “reward the party with unclean hands with that which it desperately needs.”
Slip op. at 6-7 (emphases added).
Reviewing this record, the CCA finds that “the narrow issue before this court concerns trial counsel’s refusal to comply with the military judge’s order and the military judge’s remedy for this refusal, not the findings of Brady violations that led to this issue.” Slip op. at 12. So the court asks two questions:
First, did trial counsel have a valid basis to refuse to comply with the military judge’s order to produce the interview notes for an in camera review?
Second, did the military judge abuse his discretion in dismissing the charges and specifications with prejudice rather than electing some less drastic remedy?
Slip op. at 12 (paragraphing added).
For the first question, the CCA “emphatically answer[s] this question in the negative, holding that the military judge was within his authority to order the notes to be produced for an in camera review and the Government had no basis to refuse this order.” Slip op. at 12. The court notes that the Government continues to assert that it had the right to refuse the judge’s order, and it finds the Government’s arguments unpersuasive. It concludes:
If trial counsel had a good-faith basis to refuse to comply with the military judge’s order to produce the interview notes for an in camera review, he failed to articulate that basis on the record. The court’s order was clear, lawful, and valid. Likewise, on appeal, the Government has failed to articulate any valid rationale for its noncompliance. In the absence of some unusual circumstances not present here, we refuse the Government’s invitation to authorize counsel to disobey orders of a military judge.
Slip op. at 16.
For the second question, the CCA agrees that “trial counsel’s refusal to follow the military judge’s order warranted a remedy,” slip op. at 16, and notes that:
Our obligation is not to substitute our interpretation of the facts for that of the military judge but to determine whether the military judge’s findings are fairly supported by the record. They are. In addition to the requests for continuances and multiple late notices, we note, as did the military judge, that: (1) this was not a particularly complex case from an evidentiary standpoint that should normally warrant late notices; (2) the Government provided no valid reasons whatsoever for its refusal to comply with the military judge’s order, leaving room for speculation about its motives; and (3) the defense seemed to take a particularly strident position in its desire to timely try this case. The record provides some support for the military judge’s findings of fact, and we lack the authority to overturn them.
Slip op. at 17. The CCA then takes a step back and observes that:
[W]ith the benefit of the appellate perspective and distance, we express disappointment that a brief continuance of some number of hours could not be granted to allow trial counsel to obtain additional guidance. Normally, a brief continuance is far preferable to dismissal with prejudice, which nullifies the interests of the Government, the alleged victim, and the public in litigating this matter.
Slip op. at 18. However, the Government’s persistent refusal to comply is just too much:
[T]he Government’s position on appeal makes our resolution of the choice of remedy simple. At oral argument, this court asked Government counsel whether it was now prepared to turn over the interview notes for in camera review by the military judge. Government counsel represented that the United States would not do so, absent an explicit order from this court (or our superior court) to do so. Two follow-on filings from the Government again indicate that the Government still believes it had the authority to disobey the military judge’s order and will not comply with the order until all appellate options have been exhausted. In other words, even with the benefit of more than three months of consultation, reflection and research, the Government still believes it had no obligation to comply with a military judge’s order for in camera review. Therefore, even if the military judge had granted a brief continuance for trial counsel to consult with JAJG, it is apparent that the Government still would not have produced the notes for in camera review. The military judge did not abuse his discretion in his choice of remedy.
Slip op. at 18.
The CCA’s decision is relatively narrow, focusing only on the Government’s disobedience of the judge and the judge’s rationale for ordering the dismissal. But the CCA makes some powerful findings in this decision, such as finding that military judge’s order for an in camera review was “clear, lawful, and valid,” slip op. at 16, and that the military judge was not unreasonable in finding that the trial counsel acted in bad faith, slip op. at 17-18. These findings appear pretty bulletproof, and they’re particularly noteworthy considering that they come from an Air Force appellate court reviewing the decisions of an Air Force judge on actions taken by Air Force prosecutors.
While I won’t be surprised if the Judge Advocate General of the Air Force certifies this case to CAAF (especially considering the recent history of JAG certifications), the JAG might want to think twice. The Air Force court’s opinion is pretty strongly worded, and it casts an awfully harsh light. I think it highly unlikely that CAAF will be more charitable.