The Army CCA finds “no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.”
In a published opinion in United States v. Stellato, __ M.J. __, No. 20140453 (A. Ct. Crim. App. Nov. 17, 2014) (link to slip op.), a three-judge panel of the Army CCA grants a Government interlocutory appeal of a military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations. Senior Judge Tozzi writes for the panel.
The opinion contains a lengthy recitation of facts. The case “involves purported discovery violations over the course of several months. The accused, a mobilized reservist, is charged with various acts of molesting his biological daughter, MS, from 2007 through 2009. At that time, MS was between less than three years and less than five years of age.” Slip op. at 2.
I’m going to focus on the discovery issue that I think is the most significant: A dispute over the late disclosure of the existence of a “box” (and the term is used in quotes throughout the opinion) of evidence that was assembled by the alleged victim’s mother, Mrs. MS (notably, the alleged victim and her mother share the same initials – the CCA identifies the alleged victim as “MS” and the mother as “Mrs. MS”):
On approximately 9 February 2013, Mrs. MS, with the assistance of friends, compiled what witnesses described as a “box” of evidence relating to this case. Mrs. MS had compiled this evidence over several years since the allegations were first made and kept it in a large, color-coded binder several inches thick. She kept this binder in a green plastic file box, which she kept on the kitchen table in her home.
Slip op. at 3. The lead trial counsel (the prosecutor), Captain KJ, learned about the “box of evidence” in early 2013. But its existence wasn’t disclosed to the Defense until about a year later, in March 2014. By that time the trial had already been continued twice due to Defense concerns about incomplete discovery, and Captain KJ had been replaced as trial counsel (apparently because he was going to deploy, but the opinion doesn’t make this clear):
[T]he government revealed to the defense and the military judge in the R.C.M. 802 conference that there was a “box” of information in the possession of Mrs. MS that had not been provided to the government, let alone disclosed to the defense, and would not be available for trial as it was still in West Virginia [trial was to occur at Fort Bliss, Texas -zds]. This was the first time the “box” had been disclosed to the defense or the military judge, despite the defense receiving some of its contents in piecemeal discovery after being scanned by a friend of Mrs. MS and forwarded on a thumb drive to the government.
Slip op. at 8. The military judge then granted a third continuance of the trial dates, and the Defense filed “a motion to dismiss with prejudice due to prosecutorial misconduct in the form of repeated discovery violations.” Slip op. at 8. After hearing evidence and argument, the military judge granted the Defense motion, dismissing the charges with prejudice on discovery grounds. The Government appealed, and the CCA reverses, finding that “the military judge based his ruling upon an erroneous view of the law and, accordingly, abused his discretion.” Slip op. at 2.
The military judge’s analysis included the following findings of fact:
The military judge stated that in this case, “the discovery violations have been continual and egregious.” He specifically cited the government’s failure to disclose the “box” of evidence that included written denials by the accused and recantations by MS. The military judge found that the government “knew that the box existed[,]” but failed to secure it, and failed to ensure that the entirety of its relevant contents were provided to the defense, and failed to disclose the existence of the “box” until the eve of the third trial date.
Slip op. at 9. The military judge concluded that “the government violated R.C.M. 701(a)(2)(A) in regards to the ‘box'” and another item of physical evidence. Slip op. at 9. Of note, R.C.M. 701(a)(2)(A) requires disclosure of items of evidence that:
are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused.
(emphasis added). The judge also “noted that R.C.M. 701(a)(6)(A) requires disclosure as soon as practicable of evidence favorable to the defense which reasonably tends to negate guilt. However, the military judge did not expressly find a violation of that rule.” Slip op. at 9. Additionally, the judge observed that “the government ‘took a recklessly cavalier approach to discovery.'” Slip op. at 9.
The judge then turned to the question of prejudice to the Defense:
The military judge found prejudice primarily because a “key witness” for the defense, Dr. K, had died after the most recent continuance and was not able to be deposed before his death. He had interviewed MS and Mrs. MS shortly after the allegations first came to light. The military judge also found prejudice because the delays have prevented the accused’s career progression, thwarted his ability to communicate with his family to resolve custody issues, and resulted in “extreme and unwarranted” restrictions such as being relegated to an enlisted barracks [the accused is a Major -zds], being denied the ability to purchase a vehicle absent an exception to policy, being required to sign in and out to leave post, and being prohibited from drinking alcohol.
Slip op. at 10. And so the judge dismissed the case with prejudice. Senior Judge Tozzi explains that:
In deciding to dismiss the case, the military judge found no legitimate reason for what he called the government’s violations. The military judge noted “[b]y leaving discovery to the whims of interested parties or law enforcement agencies, refusing to make a key eyewitness available for an interview, and failing to respond to the most basic discovery requests such as the request to preserve evidence or determine the existence of mental health records, unless ordered to do so by the [military judge], the obligations of R.C.M. 701 have been systemically ignored.”
The military judge, noting the length of the delay, analyzed the case to determine whether a constitutional speedy trial violation occurred. Because the accused had not raised a speedy trial claim, the military judge found no such violation.
However, the military judge determined that “based solely on the nature, magnitude, and consistencey of the discovery violations in this case, this is the very rare case where dismissal is an appropriate remedy. As dismissal without prejudice only gives the [g]overnment the opportunity to reset and perfect its case, and offers no remedy for the material prejudice and denial of due process already inflicted upon the [a]ccused, the only appropriate remedy left in this case is dismissal with prejudice. Being able to reach this conclusion based on the violations of R.C.M. 701 alone, the Court declines to make a finding of prosecutorial misconduct in this case.”
Slip op. at 11. Senior Judge Tozzi’s analysis of this ruling includes a general discussion of the Government’s discovery obligations in the military justice system. But as applies to the “box” of evidence kept by Mrs. MS, Senior Judge Tozzi employs a two-step analysis:
First, we must determine whether the trial counsel disclosed the evidence in the government’s possession relating to the “box.” Second, we must determine whether the trial counsel had any further duty to investigate a “box” held by a cooperating witness in order to comply with R.C.M. 701(a)(6).
Slip op. at 16-17. On the first point, the CCA concludes that the trial counsel did in fact produce all of evidence that was actually in the control of the Government. On the second point, Senior Judge Tozzi explains:
[W]e must analyze the second question: To what extent did the trial counsel have a duty to seek out exculpatory information in a “box” possessed by a cooperating witness? We conclude that the military judge relied on an erroneous view of the law. The trial counsel disclosed what he knew, as required under R.C.M. 701(a)(6). Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.
Slip op. at 17 (emphasis added). Citing numerous federal district and circuit court decisions, Senior Judge Tozzi makes a crucial distinction between Government agents and cooperating witnesses:
[T]he record does not reflect, and the military judge did not find, that Mrs. MS or MS were effectively government agents. In our view, nothing in this case gives us reason to merge the prosecuting sovereign United States and a cooperating witness and treat the two as one. Given the facts, MS and Mrs. MS cooperated with the trial counsel, but did not become agents of the trial counsel.
Thus, the “box,” and the evidence within it such as the note documenting the recantation and the emails, were outside the possession and knowledge of the government. The trial counsel did not have a duty to search a “box” belonging to third party cooperating witnesses for exculpatory information. The military judge abused his discretion to the extent that he believed that the trial counsel had such a duty.
Slip op. at 19 (emphases added).
The CCA’s ultimate conclusion is that “the military judge abused his discretion by dismissing the charges and specifications with prejudice,” and that “he clearly misjudged the scope and magnitude of the discovery issues in this case.” Slip op. at 21. The CCA is “left with a definite and firm conviction that dismissal with prejudice is not amongst the reasonable range of remedies for a military judge in this case.” Slip op. at 21. And Senior Judge Tozzi notes that “without a finding of willful ignorance, willful suppression, or other misconduct from the military judge, we cannot conclude that dismissal with prejudice is a reasonable remedy.” Slip op. at 22.
And so the CCA vacates the dismissal and remands the case for further proceedings.
The distinction that the CCA draws between Government agents and cooperating witnesses is a significant one, and I’m not aware of any military precedent that makes this point so clearly. Unfortunately, I think it’s drowned out by the CCA’s brief and somewhat after-the-fact consideration of the issue of willful ignorance on the part of the prosecutor, found in the closing sentences of the opinion:
Here, the military judge did not make a specific finding as to whether trial counsel engaged in willful misconduct. See United States v. Quinn, 537 F. Supp. 2d 99, 110 (D.D.C. 2005) (“the government cannot shield itself from its Brady obligations by willful ignorance or failure to investigate.”). Without a finding of willful ignorance, willful suppression, or other misconduct from the military judge, we cannot conclude that dismissal with prejudice is a reasonable remedy.
Slip op. at 22 (emphasis added). It’s hard not to see this as a textbook case of willful ignorance by the Prosecution in order to avoid making disclosures to the Defense. The military judge’s findings of fact included that:
CPT KJ [the original lead trial counsel -zds] became aware of the “box” of evidence in late February or early March 2013 after he visited MS and Mrs. MS with CPT FC [the assistant trial counsel -zds]. Mrs. MS testified that she referred to this evidence and showed the binder to CPT KJ while in her kitchen. At that point, CPT FC was in the basement entertaining MS. Captain KJ cautioned Mrs. MS that any evidence that she provided to him would have to be turned over to the defense, so if she had questions she should “ask ahead of time.” Mrs. MS testified that she did not take that statement to mean that she should not provide the evidence to the government, but that she should be aware it would be disclosed to the defense.
Slip op. at 3 (emphasis added). Notably, the CCA’s opinion reveals that Captain KJ developed a rather close relationship with the alleged victim and her mother:
Captain KJ and his wife went to dinner with Mrs. MS and MS in December 2013 in El Paso, Texas, and Mrs. MS is “pretty sure” she paid for the dinner, although CPT KJ testified that he and his wife took Mrs. MS and MS to dinner. Mrs. MS gave a gift to CPT KJ to celebrate the pending birth of a child, but CPT KJ was unaware of the gift, due to his deployment, until after it was provided.
Slip op. at 7. Additionally, “throughout 2013, [Mrs. MS] developed a strong rapport with CPT KJ [the trial counsel]. Captain FC [the assistant trial counsel] requested that CPT KJ provide her feedback on his progress with the case relative to discussions with Mrs. MS, but was repeatedly rebuffed to the point where she brought her concerns to both the former and current chief of military justice.” Slip op. at 8.
The opinion also reveals that Captain KJ had rather strong feelings about the case:
Captain KJ acknowledged that he made a statement in front of the Chief of Client Services in the presence of civilian defense counsel that the civilian defense counsel was “defending rapists” and had sent an email to the civilian defense counsel that, in effect, stated that she was “defending the guilty.”
Slip op. at 6. And the CCA’s opinion reveals that Captain KJ’s stance on discovery was a festering issue in the case during the second half of 2013. The military judge granted two defense continuances due to “incomplete discovery,” slip op. at 5 and 6, and “in a written ruling on 17 September 2013, the military judge cautioned the government that their decision to ‘take a hard stand on discovery . . . invites disaster at trial.'” Slip op. at 6.
Sometime in late-2013 or early-2014, Captain KJ was replaced as trial counsel by Captain BH. The disclosure of the “box” of evidence maintained by Mrs. MS appears to have been made after Captain KJ was replaced by Captain BH.
These facts beg a lot of questions about Captain KJ’s actions as lead trial counsel in this case. For instance: why didn’t he review the box of materials when he learned about it in early 2013? Why didn’t he disclose its existence to the Defense? Did he develop an improperly-personal relationship with the alleged victim and her mother? And, what role (if any) did supervisors play in Captain KJ’s handling of the discovery issues?
It seems like the military judge was trying to shield Captain KJ from some of these questions in his resolution of the Defense motion, by avoiding making any direct finding on the issue of prosecutorial misconduct. But the CCA’s decision puts Captain KJ’s actions as trial counsel – and his objectivity – in the spotlight.
I think it’s rather easy for a lawyer to get caught up in the facts of a case, and particularly so in a case involving emotionally-charged issues such as the child sexual assault allegation in this case. But whatever happens next, I think the facts of this case are a good reminder to military prosecutors of the need to stay objective.