Opinion Analysis: Finding “deeply troubling” conduct by trial counsel, CAAF affirms dismissal with prejudice in United States v. Stellato, No. 15-0315/AR
CAAF decided the interlocutory Army case of United States v. Stellato, 74 M.J. 473, No. 15-0315/AR (CAAFlog case page) (link to slip op.), on Thursday, August 20, 2015. Finding significant flaws in the way the trial counsel (military prosecutor) handled his discovery obligations, CAAF affirms the pretrial ruling that dismissed with prejudice charges involving alleged sexual assault of a child, concluding that the military judge did not abuse his discretion in finding discovery violations and finding no lesser remedy adequate. CAAF reverses the decision of the Army CCA and reinstates the military judge’s ruling dismissing the case.
Judge Ohlson writes for the court. Judge Stucky writes separately, concurring in the result but disagreeing with the majority’s conclusion regarding one of the numerous discovery issues.
The accused, a mobilized reservist, was charged with various acts of alleged sexual molestation of his biological daughter, Miss. MS, from 2007 through 2009, when the child 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 (some of them highly exculpatory) assembled and held by the alleged victim’s mother and referred to as a “box” of evidence. Another item is a plastic banana allegedly used to assault the girl and subsequently held by civilian authorities. Other concerns involve a witness that the Defense sought to interview, and an expert whose testimony would have been favorable to the Defense but who suddenly died during delays incurred by litigation of the discovery issues.
The Defense sought multiple continuances of the trial, asserting outstanding discovery issues. The military judge granted numerous continuances, once “warn[ing] the Government that its decision to ‘take a hard stand on discovery
. . . invited disaster at trial.’ (Ellipsis in original.).” Slip op. at 10 (marks omitted). That disaster eventually arrived for the Government when the Defense moved to dismiss the charges due to prosecutorial misconduct and the military judge found “‘continual and egregious discovery’ violations by CPT Jones,” the trial counsel. Slip op. at 14. Then, “after considering ‘all possible remedies in this case’ and the requirement ‘to craft the least drastic sanction,’ the military judge dismissed the case with prejudice based on ‘the nature, magnitude, and consistency of the discovery violations’ in the case.” Slip op. at 14.
The Government appealed and in a published decision issued last November (discussed here) a three-judge panel of the Army CCA reversed the military judge, finding that the military judge “clearly misjudged the scope and magnitute of the discovery issues in this case.” 74 M.J. 501, 515 (A. Ct. Crim. App. Nov. 17, 2014). CAAF then granted 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.
Yesterday’s decision reverses the CCA but does so by piercing through the CCA’s decision and “review[ing] the military judge’s rulings directly,” with CAAF concluding that “the military judge did not abuse his discretion in finding discovery violations and in dismissing this case with prejudice.” Slip op. at 15.
It is, at first glance, the most significant prosecutorial misconduct case decided by CAAF since United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (finding prejudicial misconduct in the trial counsel’s findings argument). Where Fletcher defined the contours of Government argument, Stellato defines the contours of Government discovery.
Judge Ohlson begins his analysis by explaining that:
In deciding this case, we must evaluate two decisions by the military judge: (1) the determination that trial counsel committed discovery violations; and (2) the determination that dismissal with prejudice was an appropriate remedy in this case.
Slip op. at 16. Judge Ohlson analyzes the military judge’s conclusions with respect to five separate alleged discovery violations, and concludes that the military judge did not abuse his discretion in finding all as violations. The five violations are:
- “[T]he Government failed to respond to the accused’s discovery request pertaining to the existence of mental health records.” Slip op. at 22.
- “[T]rial counsel did not exercise due diligence in preserving or protecting evidence.” Slip op. at 23.
- [T]he Government denied access to [a witness] and took the untenable position that [the witness] was not ‘part of the charged offenses’ despite [the alleged victim’s] allegation that [the witness] was present for some of the abuse.” Slip op. at 26.
- The Government failed “to comply in a timely manner with the defense discovery request to inspect the banana,” because “trial counsel was readily able to gain possession of the banana from the Sheriff’s Department.” Slip op. at 29.
- “By effectively remaining willfully ignorant as to the contents of the box and by not disclosing its existence to the defense, CPT Jones [the trial counsel] did not disclose exculpatory evidence “as soon as practicable.” Slip op. at 36-37.
CAAF is unanimous in its findings of violations with respect to four of these issues, with Judge Stucky taking exception to only the majority’s conclusion with regard to the plastic banana (he finds that military authorities did not have possession, custody, or control over the item).
Of these five, the first (involving mental health records) was not reversed by the CCA or challenged by the Government before CAAF, and so there is no substantive analysis of the issue. But the other four combine to make Judge Ohlson’s decision a significant precedent for how military prosecutors must approach their discovery obligations.
First, for the trial counsel’s failure to exercise due diligence in preserving or protecting evidence, Judge Ohlson notes that “the R.C.M. does not provide any explicit requirement for the Government to preserve evidence upon the defense’s request.” Slip op. at 23. However, CAAF “has interpreted this requirement to mean that the ‘Government has a duty to use good faith and due diligence to preserve and protect evidence and make it available to an accused.'” Slip op. at 23 (quoting United States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986)). In this case, CAAF finds that the trial counsel failed to use good faith and due diligence in that:
The accused’s discovery request specifically stated, “The government is requested to preserve and produce [a series of] physical evidence for subsequent examination/use by the defense . . . .” And yet, CPT Jones did not seek to preserve any evidence from its key Government witness, Mrs. MS, or from the civilian law enforcement agency that investigated some of the molestation allegations against the accused. This failure occurred despite (1) the accused’s discovery request to preserve, (2) CPT Jones’s knowledge that these entities might have items of potential evidentiary value, and (3) CPT Jones’s access to this evidence.
Slip op. at 23. Judge Ohlson disclaims any intent to create new law (“In reaching this conclusion, we are not creating any new affirmative Government obligation to preserve evidence.” Slip op. at 24.), but this decision will reverberate in prosecution offices throughout the military, and will undoubtedly result in policy changes regarding the handling of defense requests for preservation.
Next, for the Government’s refusal to produce a witness, Judge Ohlson takes issue with fact that “instead of facilitating any discovery from Miss LRE, the Government opposed the defense request.” Slip op. at 26. Miss LRE was “approximately the same age as, and a friend of, Miss MS,” the alleged victim, and the alleged victim asserted that Miss LRE was present during the alleged assaults and had also been assaulted by the accused. Slip op. at 4. Miss LRE’s “legal guardian would not allow her to testify or speak with investigators if she was under threat of subpoena.” Slip op. at 11. Accordingly, the Defense sought to depose Miss LRE, however:
The Government opposed this request, asserting that Miss LRE was “not relevant to the charges before the Court,” and that Miss LRE’s inability to “hardly remember” the events was not exculpatory.
Slip op. at 10. The military judge denied the Defense motion to order a deposition, but he took action that ultimately resulted in Miss LRE submitting to an interview during which she contradicted the alleged victim’s allegations.
Judge Ohlson finds the Government’s position with respect to Miss LRE to be “untenable,” but it is a footnote that I think best highlights the court’s opinion:
This conclusion should not be construed to be a finding that the Government commits a discovery violation if diligent and good-faith efforts do not lead to a witness submitting to an interview. We recognize that “a potential witness at a criminal trial cannot normally be required to submit to a pretrial interview for either side.” United States v. Alston, 33 M.J. 370, 373 (C.M.A. 1991); United States v. Morris, 24 M.J. 93, 95 (C.M.A. 1987). Rather, we merely conclude that the Government cannot impede access to a witness, and the military judge’s decision as to Miss LRE was not an abuse of discretion under the circumstances of this case.
Slip op. at 26 n.9 (emphasis added). That CAAF (unanimous on this point) seems to equate the Government’s opposition to a motion for a deposition to the Government impeding access to the witness – particularly when the opposition was affirmed by the military judge’s denial of the motion – compels the close attention of every military prosecutor dealing with a recalcitrant witness.
Third, for the delayed response to the Defense request to inspect the banana that was being held by civilian authorities, Judge Ohlson’s conclusion is predicated on the finding that it was the military that really had control over the item:
[A] trial counsel cannot avoid [the disclosure requirements of] R.C.M. 701(a)(2)(A) through “‘the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial.’” UnitedStates v. Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998) (quoting United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997)). Article III courts have identified a number of scenarios in which evidence not in the physical possession of the prosecution team is still within its possession, custody, or control. These include instances when: (1) the prosecution has both knowledge of and access to the object; (2) the prosecution has the legal right to obtain the evidence; (3) the evidence resides in another agency but was part of a joint investigation; and (4) the prosecution inherits a case from a local sheriff’s office and the object remains in the possession of the local law enforcement.
Slip op. at 27-28 (footnotes omitted). Significantly, the majority is persuaded by the fact that “trial counsel had access to other evidence held by the [civilian] Department” Slip op. at 28. This is hardly an unusual situation, as local authorities often share evidence with military prosecutors. Yet while Judge Stucky dissents from this portion of Judge Ohlson’s opinion, he is alone in asserting that the item “was in the possession, custody, and control of the sheriff and his staff, not military authorities.” Con. op. at 1. As such, military prosecutors must now accept that with the benefit of cooperation from civilian authorities comes the burden of discovery obligations regarding evidence held by those authorities.
Finally, Judge Ohlson turns to the “box” of evidence. Assembled and kept by the alleged victim’s mother, the box of evidence contained, among other items:
notes of conversations [the mother] had with Miss MS about the allegations, journals that [the mother] kept about the allegations, and correspondence between [the mother] and the accused about the allegations. The box also contained a note on which [the mother] recorded a recantation by Miss MS.
Slip op. at 5 (emphasis added). The military judge found that the Government had constructive possession (and actual knowledge) of the box long before its contents were disclosed to the Defense, but Judge Ohlson takes aim at a particular bad act by the trial counsel:
Specifically, we note that the trial counsel in this case had actual knowledge of the existence of this box of evidence prior to the preferral of the charges. Indeed, the box was in the same room with him and within his view during the February 2013 meeting with Mrs. MS. And yet, instead of searching that box of evidence or taking possession of it, CPT Jones cautioned Mrs. MS about giving him any evidence because “everything I get will go to defense.”
Slip op. at 34. Judge Ohlson characterizes this as “willful ignorance” and notes that:
[A] trial counsel cannot avoid discovery obligations by remaining willfully ignorant of evidence that reasonably tends to be exculpatory, even if that evidence is in the hands of a Government witness instead of the Government. This prohibition against willful ignorance has special force in the military justice system, which mandates that an accused be afforded the “equal opportunity” to inspect evidence.
By effectively remaining willfully ignorant as to the contents of the box and by not disclosing its existence to the defense, CPT Jones did not disclose exculpatory evidence “as soon as practicable.”
Slip op. at 35-37 (citations omitted). This conclusion is – on its own – perhaps the least astonishing for military prosecutors, except when it is viewed in the context of the Army CCA’s conclusion that:
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.
74 M.J. at 513. Judge Ohlson does not go so far as to find an actual affirmative duty on trial counsel to seek exculpatory evidence, but he gets as close to that line as possible without crossing it. As a result, military prosecutors must approach situations that have the potential to yield exculpatory information with dry eyes and great caution.
With these violations, an explicit finding of prejudice seems almost gratuitous. Yet the Army CCA held that the remedy of dismissal with prejudice “is not authorized unless a military judge makes a finding that ‘trial counsel engaged in willful misconduct.'” Slip op. at 40. While CAAF reviewed the military judge’s ruling directly, Judge Ohlson turns away from that direct look to address this specific conclusion by the CCA:
To be sure, bad faith certainly may be an important and central factor for a military judge to consider in determining whether it is appropriate to dismiss a case with prejudice. [many citations omitted -zds] However, as the above summary of our case law regarding dismissal with prejudice demonstrates, a finding of willful misconduct is not required in order for a military judge to dismiss a case with prejudice.
Slip op. at 40-41 (emphasis added). Then, Judge Ohlson (with CAF again unanimous on this point) considers case-specific factors and affirms the remedy of dismissal with prejudice without making a finding of willful misconduct.
The immediate ramifications of this case are clear. The accused escapes this federal prosecution and the trial counsel is castigated by the court.
The repercussions of this case will continue for a long time.
• ACCA opinion (74 M.J.501)
• Blog post: Analysis of ACCA’s opinion
• Accused’s brief
• Government’s brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis