Last week CAAF granted review in the following Air Force case:
No. 17-0148/AF. U.S. v. Stephan H. Claxton. CCA 38188. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE FINDINGS AND SENTENCE MUST BE SET ASIDE IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).
II. WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT AIR FORCE ACADEMY CADET E.T. WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.
Briefs will be filed under Rule 25.
We last noted this case (in the context of Issue II) in this post.
The AFCCA’s opinion is available here. The CCA found that the failure to disclose the cadet’s status as a confidential informant was a discovery violation:
We find that Appellant’s defense counsel should have been informed that former Cadet Thomas was an informant and should have received some portions of former Cadet Thomas’ AFOSI dossier in discovery . . . This information revealed by former Cadet Thomas about his work as an informant would have provided substantial ammunition for the Defense to use in their efforts to impeach him and undercut his credibility.
Slip op. at 10. The CCA concluded, however, that it was harmless beyond a reasonable doubt because “there is no reasonable possibility that the disclosure error contributed to the contested findings of guilty.” Slip op. at 12.
On the Hills issue the CCA concluded that the improper use of the charged offenses for propensity purposes was also harmless beyond a reasonable doubt based on the strength of the other evidence:
we find any error surrounding the admission of propensity evidence in this case to be harmless beyond a reasonable doubt as it applies to the charged offenses involving both Cadet MI and Ms. SW. Unlike the Hills case, where the evidence was weak and there was no eyewitness testimony, the evidence supporting the charges of which Appellant was convicted was extremely strong. The testimony of Cadet MI and Ms. SW was strong, consistent over time, and corroborated by a number of other witnesses, as addressed earlier. And perhaps most harmful of all were Appellant’s own admissions. Conversely, the evidence regarding the charges involving Ms. KA was weak. The fact that Appellant was acquitted of the charges involving Ms. KA further undercuts the idea that the instruction may have contributed to the findings of guilty.
Slip op. at 20-21.