CAAF will hear oral argument in the interlocutory Army case of United States v. Stellato, No. 15-0315/AR (CAAFlog case page), on Tuesday, April 28, 2015. In a published decision issued in November (discussed here), a three-judge panel of the Army CCA granted 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. The CCA found 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 also found that “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.
CAAF subsequently granted the accused’s petition for review of two issues:
I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.
II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.
The accused, a mobilized reservist, is charged with various acts of alleged sexual molestation of his biological daughter, MS, from 2007 through 2009, when MS was between the ages of two and five years old. The asserted discovery violations in the case involve various items, but chief among them is a collection of materials assembled and held by a women who is the wife of the accused and the alleged victim’s mother. According to the military judge’s findings (that were adopted by the Army CCA), the materials were:
what witnesses described as a “box” of evidence relating to this case. Mrs. MS [the mother] 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. Mrs. MS and MS [the child] live in Morgantown, West Virginia.
Slip op. at 3. Among those materials was a note documenting a recantation by the alleged victim. Slip op. at 7. The military judge also found that Government counsel became aware of the materials in February or March 2013, when counsel visited the family in West Virginia. But Government agents did not secure the materials. Charges were preferred in March 2013, the accused was arraigned in September 2013, and trial was scheduled. But the defense requested multiple continuances for discovery-related issues. One such request was litigated on March 17, 2014, and was requested for three reasons:
First, the government had informed the defense that Mrs. MS had at least two journals that she kept with details of the case that she was using to prepare for trial that had not been and would not be provided to the defense because Mrs. MS did not bring them to trial but brought only selected scanned pages. Mrs. MS confirmed that no one ever asked her or told her to bring the journals or the “box” or binder of evidence to Fort Bliss.
Second, the government had just provided in the R.C.M. 802 conference, witnessed by the military judge, emails between the accused and Mrs. MS in which the accused made statements directly contradicting the allegations as well as Mrs. MS’s statements that the accused had never denied the allegations. The defense had specifically requested these emails in its initial discovery request on 22 March 2013. Mrs. MS stated that she had previously provided the emails, but later acknowledged that she had inadvertently not provided the emails to the government prior to March 2014.
Third, the 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. 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. The military judge granted the defense’s request for continuance, and the trial was docketed for a fourth time for 8 July 2014.
Slip op. at 7. Ultimately, the materials (or, at least, what was left of them in the spring of 2014) were disclosed to the defense. However, the military judge dismissed the case with prejudice, concluding that because of:
the nature, magnitude, and consistency of the discovery violations in this case, this is the very rare case where dismissal is an appropriate remedy.” Further, due to the “material prejudice and denial of due process already inflicted on the Accused,” to include the delayed disclosure of certain pieces of evidence, the loss of a defense witness due to his untimely demise, and the length of time from preferral to the scheduled court-martial, “the only appropriate remedy left in this case is dismissal with prejudice.”
Gov’t Br. at 14. The Government appealed and the CCA reversed.
The CCA’s opinion found that Government counsel complied with the discovery obligations, finding error in the military judge’s conclusion to the contrary.
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. The court also made 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). Finally, the court found 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.
CAAF’s will now review whether there was a discovery violation and, if so, how severe that violation must be before dismissal with prejudice is an appropriate remedy.
Because this is an interlocutory appeal, the only briefs are the ones filed in connection with the petition for review by CAAF. See CAAF R. 19(a)(7)(A). These briefs do not directly address the first issue, instead presenting a question of whether the CCA engaged in improper fact-finding. But the Government’s brief does put an interesting gloss on some of the facts. In particular, it asserts that:
Prior to trial, a number of additional discovery issues were brought to the government’s attention. On March 5, 2014 Mrs. MS informed the government that she possessed a napkin which had a potential recantation from the victim on it. The government immediately notified appellant, and then provided a copy of the napkin to appellant on March 7, 2014.
On March 14, 2014, Mrs. MS informed the government that she had a number of journals. The government immediately informed appellant, obtained and disclosed those journals on March 16-17, 2014.
Also on March 14, 2014, the government learned from another witness that Mrs. MS had recently been receiving therapy. The government again immediately informed appellant, and obtained the records on March 17, 2014.
On March 17, 2014, Mrs. MS provided a number of printed emails between her and appellant, which were immediately disclosed to appellant’s counsel. Mrs. MS mistakenly believed that she had already provided those to the government.
Around this time, Mrs. MS also made clear to the government that she had a box or a binder of information related to the case (hereinafter “box”) . The government informed appellant, which prompted him to request a fourth continuance on March 17, 2014.
Gov’t Br. at 11-12. I’ve always been uncomfortable with the use of the term “the Government” when “Government agents” or “counsel for the Government” are clearly more appropriate descriptors. In this case, the use of the term in the Government’s brief implies that no Government actor was aware of the materials held by the mother prior to March 2014. However, the military judge made clear findings to the contrary. The CCA’s opinion states that:
The military judge found CPT KJ became aware of the “box” of evidence in late February or early March 2013 after he visited MS and Mrs. MS with CPT FC. 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. As a military judge’s findings of fact are given great deference on appeal, Government counsel may face a very hostile bench on this point during next week’s oral argument.
Yet the Government’s brief does present a rather coherent view of the scope of the discovery issue in this case
With regard to the “box,” this court was clear in [United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999)] that the outer parameters of the government’s obligation under R.C.M. 701(a) (6) “must be ascertained on a case-by-case basis.” As the Army court pointed out, testing the nondisclosure for prejudice is complicated in this case because the appellant has yet to go to trial. Furthermore, appellant is now in possession of all of the exculpatory information contained within the “box.” Ultimately, appellant would like this Court to adopt a standard much more expansive than that expressed in Williams, namely, that the government is required to search for exculpatory information from cooperating government witnesses. Not only would this be an unworkable standard, it would also be a far departure from the other federal courts that have examined this similar issue.
Gov’t Br. at 25.
Or, perhaps, not:
The Army Court’s opinion consistently ignores the sound reasoning underlying the military judge’s findings of fact: that though the defense made specific discovery requests, the government did not act on them for over a year, and thus not only was specific evidence lost or destroyed, it would be impossible to determine how much and what additional evidence has been lost, destroyed, or corrupted. Despite such a clear finding from the military judge, the Army Court erroneously substituted its own facts for the military judge’s–that the defense had eventually received everything it had asked for. Such a substitution of judgment and contrary finding are prohibited under the plain language of Article 62.
Accused’s Br. at 22.
Ultimately, it’s hard to get a clear picture of the scope of the discovery issues – what evidence exists, what evidence was preserved, what evidence was requested, what evidence was produced, and what evidence is lost – from the briefs alone. CAAF is going to have to sort this out to determine whether there is an unresolved discovery issue.
Assuming CAAF finds that there was a discovery violation, the second issue questions the appropriate remedy. The military judge’s ruling dismissing the case with prejudice – forever foreclosing a federal trial on these serious allegations – was certainly a dramatic remedy. The best argument in the accused’s brief to affirm that remedy is little more than a recitation of the military judge’s findings:
The military judge determined that “the legal norm violated by the prosecutor and determine[d] if its violation actually impacted on a substantial right of the accused.” (App. Ex. XLIX, p. 8, citing United States v. Hasting, 461 U.S. 499 (1983)). The military judge further found the “government’s failure to provide discovery” to be “continual and egregious” and described the government’s approach to discovery as “recklessly cavalier” and “an almost complete abdication of discovery duties.” (App. Ex. XLIX, p. 9).
Accused’s Br. at 30-31. The Government’s best argument is that there is no actual prejudice to the accused:
Even in cases where discovery violations are discovered post-trial, this Court still tests for prejudice. In this case, there is no prejudice because, with respect to the specific items cited by the military judge, appellant is now in possession of all of that evidence. This is also not a case where appellant was forced to go to trial without the potentially exculpatory information he now possesses. With regard to Dr. Krieg, the delay, and the personal and professional effects of this prosecution upon appellant, the Army court put those items properly into context.
Gov’t Br. at 31.
I think the Government is right to highlight that any discovery violation must be tested for prejudice. But as with the question of whether there even was a discovery violation in this case, the question of whether the accused is actually prejudiced (and whether dismissal with prejudice is an appropriate remedy) is a difficult one.