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.

41 Responses to “AFCCA denies Government appeal of the dismissal of rape charges (after the Government refused to produce witness notes)”

  1. stewie says:

    Wow, I have no idea why you wouldn’t turn over the notes for in camera review. Particularly once the MJ threatened dismissal, and certainly after some basic case research. Although, it sounds like they were risking an acquittal anyways based on how things were shaping up.

  2. Mike says:

    This may all have been avoided if trial counsel had not insisted early one that they were just “erring on the side of over disclosure” when turning over the documents and insisting this wasn’t Brady.  Because that’s what set the judge off.  It was then that the judge got suspicious, said of course it is, this is common-sense black letter law and demanded to see more because he lacked confidence that TC knew what they were talking about.  If they had just turned it over without comment, end of story.  Thankfully, that’s not what happened, but it’s interesting. 

  3. Mike says:

    Well, no wonder JAJG wouldn’t concede it on appeal.  The court noted that although “the Government initially offered to provide its notes for an in camera
    review (which the military judge had not yet suggested but agreed to do), the Government later changed its position, responding that it would not disclose its notes “on the advice of our supervisors and JAJG.”

  4. Dew_Process says:

    Quite frankly, this is an embarrassment for the AF JAGC.  This is the “conviction at any cost” mentality where foul trumps fair. Someone at the JAG School needs to be doing a Remedial Brady 101 class.

  5. DCGoneGalt says:

    Dew_Process:  It should be a cause for embarassment, but I doubt it actually will be.  If I understand it correctly, the Government position in this case appears to be that if you withhold inconsistent statements until being publicly called out and you should then simply refuse to turn over material for even IN CAMERA review when the court loses confidence in your competence and/or ethics.  How could the Government possibly argue those statements the witnesses recall coming from the complainant regarding the event perhaps occuring in a different manner than alleged is not Brady but is instead being turned over in an abundance of caution?  Sounds like an abundance of caution in order to CYA. 
    Not sure about the conviction at any cost driving the train here as it could simply be material that trial counsel didn’t realize was important and that senior trial counsel discovered at a later date.  The facts in the opinion laid out when the statements were made but doesn’t make clear who knew of them at what time.  I think this is irrelevant for the purposes of a decision because one Government rep is the same as the next Government rep, but it could be very relevant as to the reason why it was not initially turned over. 


  6. J says:

    I remember as a young, rising 2L sitting in a prosecutor’s office I was interning at and discussing whether what was at best a marginal inconsistency needed to be disclosed to defense. After hearing my argument as to why it wasn’t an inconsistency, the prosecutor said “turn it over, we always err on the side of disclosure.” It’s an important lesson for us all and one I took to heart. I’m pretty horrified at this fact pattern. 

  7. RY says:

    I found it interesting the last bit about AFCCA wishing the MJ gave a short continuance.  First, the standard is abuse of discretion, not what appellate judges would do now or would have done.  Second, the opinion itself indicates JAJG was already consulted.  The STC was willing to turn over the materials, perhaps to stop the bleeding on prosecutorial misconduct concerns, but JAJG suggested otherwise.  Third, the author of this opinion is a JAJG alumni from just a few years ago. I suspect he holds JAJG in high regard and would have expected more but was disappointed when even on appeal they refused to comply.  Again, it should not have mattered if they would now comply on appeal because it gave the Government precisely what the MJ was concerned with – more time to prepare their case.  
    Unfortunately, I don’t think this is an aberration…I’ve seen all too often clearly discoverable material reluctantly provided “out of an abundance of caution” but which should have been clear to any 1L.  In the AF, we at least have a few counsel leading this train and no course corrections being directed from leadership, on the contrary, as this case shows, leadership is helping the terrible cause.  I just hope we fix the damage before too many young counsel follow suit and I’d sure love to see leadership return to the ideal of a totally above board prosecutor.  Alas, gamesmanship is growing especially in these sexual assault cases.  

  8. stewie says:

    Excuse my ignorance, but what is JAJG?

  9. DCGoneGalt says:

    Stewie:  JAJG is the AFs trial and appellate counsel division containing the senior trial counsel, special victim unit senior trial counsel (I believe the Army calls them SVPs), and the government appellate counsel.  JAJD is the defense equivalent.

  10. stewie says:

    So the quasi-equivalent of the Army’s TCAP in form/function?

  11. DCGoneGalt says:

    That is my understanding.  Since I am not 100% certain, I will choose to go with your use of “quasi-equivalent”. 

  12. Zachary D Spilman says:

    Something I didn’t put in my post, but I think is raised by this discussion, is the fact that the Government made two rather disturbing arguments on appeal. First:

    The Government disagreed at trial that it failed to comply with its discovery obligations, and it maintains that position on appeal. We express skepticism with the Government’s position that the statements by the two senior noncommissioned officers are not Brady material.

    Slip op. at 12 (emphasis added). Faced with dismissal and a skeptical CCA (the oral argument audio isn’t posted, but I expect that the panel pushed hard for the Government to admit some misstep along the way), the Government refuses to admit even the slightest degree of fault. 


    When pressed at oral argument . . . the Government asserted that the military judge’s decisions up to that point caused the Government to lose confidence that the military judge would treat the submitted material appropriately; for example, the Government feared the military judge might immediately release information to the defense without allowing the Government an opportunity to protest this action to our court.

    Slip op. at 14 (emphasis added). This is an astonishing position for the Government’s appellate division to take, considering that trial counsel didn’t raise this concern when the judge ordered the review, didn’t ask the judge to agree in advance to delay any disclosure to the Defense to permit an appeal to the CCA, and didn’t ask the judge to recuse himself (or even conduct a voir dire), even though trial counsel counsel did discuss the in camera review with their “supervisors and JAJG [appellate division].” Slip op. at 5.

  13. Krystal says:

    Actually, the Government did ask the military judge to recuse himself.  That was despite the MJ  telling the Govt in a prior 802 that when the Govt asks for a recusal “it never ends well.”

  14. Zachary D Spilman says:

    Krystal, I see in the opinion that the trial counsel moved for recusal on an unrelated basis (concerns about consideration of the pretext phone call) after the accused elected trial by military judge alone. Slip op. at 2. But I don’t see any motion for recusal related to the discovery issue. 

    Are you saying that the Government moved for recusal based on the discovery issue?

    Because the CCA’s opinion gives every indication that the Government did not do so (i.e., “If the Government had some specific concern—for example, if it was concerned that the military judge, sitting as factfinder, would see some material in the notes inappropriate for a factfinder to see—it could have articulated that on the record. It made no effort to do so.” Slip op. at 16 (emphasis added)).

  15. Another Perspective says:

    I think the bigger picture result has not yet been addressed.  The trial judge’s ruling and this decision will likely have a chilling effect on TC’s even taking notes during interviews.  After I reached a certain number of courts, I just stopped taking witness interview notes.  I did not get close to the line of failing to disclose Brady evidence, but there was no way I was allowing anyone, even the judge, to review my “mental processes” in order to unjustly indulge a DC’s fishing expedition.  It would not be surprising at all to see more TC’s just decide to not take notes.

  16. Krystal says:

     The Govt had already put on the record that they did not believe this MJ could be an impartial fact finder in the case.    After the MJ warned against recusal motions and already denied one, I wouldn’t call it “astonishing” that the Govt would lose confidence that the MJ would treat the submitted material appropriately without making another motion to recuse. 

  17. Zachary D Spilman says:

    Well Krystal, I think the Government’s actual recusal motion was nonsensical.

    The CCA’s opinion explains:  

    The appellee’s civilian defense counsel then expressed an intention to change the forum selection from officer and enlisted members to military judge alone and stated the defense would withdraw its objection to admission of the pretext phone call statements. Trial counsel then moved for the military judge’s recusal, expressing concern that the military judge could not fairly consider the statements in the pretext phone call now that they were apparently going to be introduced into evidence with the military judge now sitting as the fact-finder. The military judge denied the recusal motion, and the appellee pleaded not guilty and requested trial by military judge.

    Slip op. at 2 (emphasis added). In other words, the basis for the Government’s recusal motion was that the judge was familiar with the evidence that both parties wanted admitted. That hardly fits the R.C.M. 902 criteria. 

    The CCA doesn’t dig into that recusal motion, but it does indirectly discuss the basis for the motion:

    We note that military judges often are exposed to evidence that is ultimately ruled inadmissible. Military judges are trusted to compartmentalize portions of courts-martial and disregard inadmissible evidence to which they have been exposed.

    Slip op. at 16 n.10. Of course, the evidence at issue in the recusal motion was admissible, not inadmissible.

    Had trial counsel moved for recusal a second time and actually stated a concern about how the judge would handle the submitted material (a gutsy move for sure, but we are talking about military service here), I’d agree with you. But since that concern didn’t appear in the record until after the case got to appellate division, I think it an awfully infirm basis for reversal.

  18. JustAnotherADC says:

    @Another Perspective: I don’t really think your logic holds up on examination.  Many professionals (such as health care providers) take notes knowing their “mental processes” will be reviewed in order to protect themselves against unfounded claims (e.g., “fishing expedition[s]” in your words). In fact, I suspect that’s the standard of care in most jurisdictions, and evidence that the professional willfully failed to take notes in order to insulate their “mental processes” would potentially be evidence of negligence (perhaps recklessness if it evinced a wanton disregard for the consequences of not taking notes).
    Regardless of whether a prosecutor takes notes of a statement, they still have a disclosure obligation.  Accordingly, even if you never recorded an inconsistent statement after you “reached a certain number of courts,” you still should have been providing discovery to the defense after the interview.  The DOJ best practice (after it too was embarrassed by several nondisclosure issues) was for prosecutors to write memorandums disclosing the Brady/Giglio material.  Perhaps this is what you did after you stopped taking notes, but your reply suggests otherwise. 
    Maybe your technique resulted in the defense never learning of a discovery violation, and so shielded you personally, but it seems a far cry from a model for a prosecutor to hold up as a best practice.  The only “chilling effect” likely to come from this military judge’s decision (upheld on appeal without dissent by an en banc court that can hardly be described as overly defense friendly) is to discourage prosecutors from thin-slicing the rules in a way that is eventually going to result in an accused not receiving a fair trial. 
    The judge’s ruling (upheld on appeal with the moral authority of an en banc court) provides incentive for prosecutors to err on the side of disclosure “early and often,” lest the delay and hedging be seen in an unfavorable light.  Perhaps there is a word for that I’ve heard from time to time in prosecutor’s sentencing arguments… what is it…?
    Oh yeah: “general deterrence”

  19. stewie says:

    Took the electrons right out of my virtual mouth. Not taking notes does nothing. The Brady obligation doesn’t depend on notes. I’ve never seen a DC just say “I want all your notes” and get them without some other intervening reason (like in this case).
    “but there was no way I was allowing anyone, even the judge, to review my “mental processes” in order to unjustly indulge a DC’s fishing expedition.”
    The notes are mental processes? They are just notes of your interview. Do you have a steel trap memory? And even if they include your mental processes, why do you care if the MJ sees them? Unless it’s a JA case, ok then maybe? I agree with JAADC…not well thought out comment.

  20. Another Perspective says:

    Two quick points:  1) I always disclosed Brady evidence and never needed notes to do so. A quick email or memo was always easy to do.  I understand DOJ best practices and my bar rules (which do not mandate taking notes of witness interviews).  2) to fully appreciate the significance of this ruling you guys need to think like a prosecutor.  Having been on both sides of the aisle, I can say that the thought process is different.  All I am saying is this decision incentivizes TCs to abandon the practice of taking notes, forcing DCs to rely on the judgment and recall of the individual TC, who may be less experienced or less ethically bound than I was, resulting in less disclosure and no real way of discovering lack of disclosure.  Sounds like a precarious situation…  In other words, this decision may not be all roses for the defense in the end.  

  21. stewie says:

    Been on both sides, this ruling would have had no effect on me on the government side of the aisle. If I took notes before, I’d take notes now. The only possible difference is I wouldn’t put my thoughts in with witness notes. Pretty easy to separate the two.

  22. Zachary D Spilman says:

    I reach the exact opposite conclusion, Another Perspective.

    Here we have a case where the trial counsel (and apparently supervisory counsel all the way up to the top) don’t think that disclosure is required under Brady or the R.C.M., but the military judge and the CCA all disagree with that conclusion. Putting aside any concerns about how such a disparity in opinions is possible, the existence of notes gives any trial counsel a safety net. By giving the notes to the judge for an in camera review, trial counsel can be certain that all necessary disclosures are made in a timely fashion. Without contemporaneous notes for review, trial counsel is exposed to in-trial or post-trial allegations of a failure to disclose. 

    Moreover, there’s recent Air Force precedent for the use of the military judge as a backstop. In an August post titled “The AFCCA lets the Government put the burden on the judge,” I considered the AFCCA’s opinion United States v. Hudgins, No. 38305 (A.F.Ct.Crim.App. Apr. 3, 2014), where the court endorsed the functional transfer of the disclosure burden for mental health records from the Government to the judge. I concluded that post with the observation that:

    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.

    I also can’t help but find ironic the notion that prosecutors wouldn’t want a judge to review their “mental processes” (your term) for case preparation when they will so willingly dig through the private life of an accused. See, e.g., United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page) (an Air Force case where CAAF detailed the Government’s misconduct in violating the appellant’s Fourth Amendment rights, justifying the court’s application of the exclusionary rule).

    Interestingly, Judge Weber wrote the CCA’s opinion in both Hudgins and Bowser.

  23. RY says:

    Been on both sides of the aisle as well and I wouldn’t change taking notes either and I fall into the category of people who think notes, even without commentary, invariably provide some mental processes of the interviewer.  More specifically, the questions asked give insight into my thought processes on either side of the aisle and may divulge tactical considerations only opposing counsel might appreciate.  In other words, just from reading the questions you can ascertain – he’s pursuing mistake of fact here, character witness here, MRE 412 issues here, exploring impeachment evidence here, based on this questioning the client must be asserting this happened because only client would have known that for the interviewer to ask that, etc.  Nevertheless, there are a host of reasons taking notes is in my best interests.  Among the most important is the impact of having notes to read from when impeaching a witness and preparing motions to bolster your credibility before the MJ/jury on these areas.  Incidentally, it’s not just about whether the attorney takes notes; any notes of the interview would be at issue. 
    On a separate note, I think attorneys are too leery of voir diring judges.  Judges are people too and subject to biases like everyone else.  In some cases, a proper voir dire just helps ensure the MJ, who more often than not truly wants to ensure a fair trial, is aware of potential bias concerns so he/she consciously ensures they play no part of his/her decision process.  IMO, it’s all about how you voir dire…fair questions, not snippy or winey because you lost a motion, work.  I had a couple voir dires lasting about 45 min in sex assault cases.  In feedback, it was uncomfortable for the MJs but it only increased their respect for me based on how fair and valid the concerns were.  In this case, the arguments advanced on appeal are ridiculous.  If there was truly a concern about MJ fairness, it should have been addressed through voir dire of the MJ.  This particular counsel saw me voir dire the same MJ twice, and move for recusal of this MJ twice in the same trial (because of UCI concerns related to sex assault cases) and it was a few months before this case went to trial. 

  24. stewie says:

    I concur that you can get some insight into thought process but to me folks overestimate keeping their theory secret. Is it really all that surprising that mistake of fact as to consent, or motive to fabricate are going to be themes to push or defend against for example? At any rate, concur with RY in all.

  25. SeñorTC says:

    Having spent most of my time on the prosecution side of the fence now, I’ve seen less and less profit in hiding the ball.  The main theory of my case is rarely much of a secret, nor am I reluctant to acknowledge the defects to defense.  Perhaps it’s selfish and lazy, but it makes it easier for me to keep my hat white-ish, less stressful because I don’t worry about being cagey or sneaky, and it makes it easier to frankly negotiate PTAs.  It also simplifies my dealings with VLCs.  And I find it makes it easier to have friendly, collegial relationships across the aisle.  Oh, and of course it dramatically reduces the chance of an ethical SNAFU.
    Perhaps I’ll change my tune after being ambushed by some sufficiently slimy or sneaky Defense counsel, but so far the open kimono policy has paid dividends over multiple tours.  And I can’t see fear of a judge reviewing my work in camera really changing notes or the like.  I think most of us are too busy to waste time and effort trying to outsmart the judge on this front.  Perhaps more to the point–disorganization is a greater handicap and danger to the prosecution, and trying to avoid notes or similar workproduct is likely to cost us more there than any potential gain/protection in avoiding a potential glance by the judge or defense later. 

  26. af_dc says:

    Good lord. @Another Perspective, you think TCs are going to stop taking notes because they have to turn them over? Really? Well, maybe, but your average AF TC these days has about six or seven cases running at any given time. Written notes are pretty crucial to keeping the facts of each straight. Instead of relying on pnemonics to jog their memories, they could just take good notes that wouldn’t be embarrassing to have as part of the public record of a court-martial. I see the practical effect of this ruling being that TCs will stop making personal observations about their witnesses’ appearances in their notes and also stop doodling penises on the notes when they get bored. That’s about it.

  27. DCGoneGalt says:

    af_dc:  Doodling penises in the notes?  Did you have a 5-year old Jonah Hill from Superbad taking notes on one of your cases?

  28. The Silver Fox says:

    Loud noises!

  29. af_dc says:

    DCGG, no, just, uh, hypothesizing. Yes.

  30. Michael Lowrey says:

    And for your listening pleasure, AFCCA posted the audio file from the oral argument in this case today. Interesting timing to say the least.

  31. Zachary D Spilman says:

    Thanks Michael Lowrey

    The audio of the oral argument in this case is available here:

  32. CPTAGJ says:

    AFCCA’s ongoing interpretation of Brady makes it seem strange that law schools continue to teach the Work Product Privilege.
    If you don’t think this interpretation is expansive, put on your AFCCA robe and ask yourself, “If after a witness interview where the TC took no notes, the TC emailed her co-counsel about concerns she had about something a witness said, would that email become Brady mandatory disclosure?” It seems like AFCCA, if they applied the same analysis, would determine that the email was a mandatory Brady disclosure.
    I think Stewie’s argument encapsulates AFCCA’s position: TCs should continue to take notes. Sure, they can try separating “witness statements” from “attorney thoughts,” but if there is any reference in those “attorney thoughts” notes about what a witness said or how they acted, those notes forfeit their privilege. TCs should abandon their claim of privilege anyway, because, “hey, maybe your privilege might not matter that much anyway.”
    All that aside, who would seriously advise a TC to just give the big ole bird to an MJ who they already know is not their bestie?

  33. Michael Lowrey says:

    Have now listened to the oral argument. The government fully deserves the smackdown it got from AFCCA — and it was every bit as defiant during oral argument as the decision made it out to be. Just conceptually, the government claiming the MJ was simply horrible so they should be allowed to ignore him isn’t exactly a winning argument.

  34. Saul Goodman says:

    Brady/Giglio/701a6 disclosures by government counsel is not simply a military problem – it’s a problem across military, federal, and state courts.  Until TJAGs start taking folks down like NC took down Mike Nifong, I think it will continue to be a problem in the military, especially with the pressure to prosecute (and win) sexual assault cases.  We tend to chalk up these disclosure failures as “lack of experience by counsel.”  This case seems to demonstrate it was failure at all levels on the government side of the house.  Hard to say that this was due to lack of experience.  I won’t comment on whether it amounts to an ethical violation that needs to be investigated.

  35. Phil Cave says:

    We can go further.
    There are three crimes for which there is “some evidence” and “reasonable grounds to believe” a crime(s) were committed, based on cites from the opinion.
    For the TC, Art 92, willful dereliction of duty, Art. 98, and Art. 133, and possibly Art. 92 willful dereliction of duty for the supervisors.
    Some of you may have missed this from late last year.
    As Saul points out, and I would say based on my experiences over the years that discovery and Brady are the worst problems facing military law on a practical day to day level.
    Other sites to visit:
    NMCCA took the step of referring Earle Partingtion to TJAG, for something less serious than this.
    The reason firm steps need to be taken in this case is because it appears to be directed and condoned by HQ/TJAG.  Therefore, Saul, no excuses.  And as we know from Thompkins, the malice or none of the TC is irrelevant.

  36. Advocaat says:

    Sorry to come to the party so late.  This opinion is extraordinary in that it is a step-by-step primer for AF prosecutors to understand their obligations to the defense and to the court when ordered to produce evidence of potential Brady material.  One would not have thought that would be necessary.  AF JAGC leadership had better recognize it has a problem on its hands with this rebuke.  Where was the base SJA?  The NAF SJA?  The MAJCOM SJA?  The CSTC?  JAJG?  JAJ?  Shipping this off to CAAF is absolutely the wrong move.  It’s refreshing to see trial and appellate judges holding the government to account.

  37. Dew_Process says:

    @Advocaat = JAJG was involved from the beginning as earlier posts here demonstrate.  Notably, to date, JAJG [which monitors CAAFlog] hasn’t chimed in.  As brother Cave points out, this is a systemic problem especially in the AF.  Much of the problem is caused by the failure to understand the interplay among the competing legal & constitutional provisions.  Brady is a constitutional component of Due Process / fair trials. Thus it trumps most evidentiary privileges.  Hence the necessity of judicial supervision via the in camera review process. Nor does it appear that the government understood just how that process works, viz., TC must ID the parts of the notes that contain the “mental impressions” of the TC.  Those are then redacted & the Brady material turned over. It’s not that complicated – unless the goal is conviction at any cost!

  38. DCGoneGalt says:

    Advocaat:  Where was JAJG?  As Dew_Process mentioned, JAJG was consulted at the trial stage and then held their position for the appeal, to the seeming disappointment of AFCCA.  There are two issues that shock me in this case, neither of which is the lack of a timely Brady disclosure.  In my experience, discovery seems to consist of the investigative report and any additional incriminating nuggets the Government uncovers via 404(b).  The first issue is that even when the material was turned over trial counsel maintained that it was NOT Brady material.  From reading the opinion, it seems that is why the judge ordered the in-camera review of the notes.  He appears to have lost confidence in the trial counsel’s ability to even know what Brady material was, and therefore were incapable of identifying it.  The second issue is that the Government honestly believed they could just refuse to turn the notes over for in-camera review.  I understand that work-product is different than MRE 412, 513, or classified material in that it can reveal case strategy or discuss weaknesses in theory.  I understand this can be uncomfortable in a case involving a military judge-alone forum.  However, military judges know your theme and theory and what the weaknesses of your case are.  Judges review inadmissible evidence all the time and do not take it into account for findings/sentence.  
    Regardless of the position of JAJG and TJAG, I think this opinion will enforce to trial counsel the importance of knowing what material is covered by Brady and encourage timely disclosure.  This avoids the judge asking for notes/work-product.  
    Question:  I may be a little slow but I want to be clear on this, was the Government position a blanket policy that a military judge does not have the authority to order in-camera review of notes?  I read it that way and that is driving my “whaaaaat?” factor.  Or was a fact-driven position unique to this case?

  39. Ed says:

    I’ll bet its certified.

  40. stewie says:

    CPTAGJ, Brady trumps work product privilege, yes or no?

  41. Kat says:

    Super late, but these are all applicabe under the Jenks act.  Work product doesn’t apply when it’s a witness’s testimony.  This applies to victims and agents.