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.

29 Responses to “CAAF grants review of a Brady violation (with a Hills kicker)”

  1. Vulture says:

    It was a long time ago, but I remember some of high school history and government classes.  We learned about Plessey v. Ferguson and Mabry v. Madison, then some about Brown v. The Board of Education (or was I bored).  Even Gideon v. Wainwright.  But not Brady v. Maryland.  I don’t remember that one.  I guess that the Government stopped making that kind of mistake.  They must have because Gideon and Brady where in the same year.  Interesting that I knew that I was supposed to have a right to Counsel but that counsel would have to go into Court without exculpatory evidence.

  2. k fischer says:

    Vulture,
     
    It appears that Brady only matters in those cases where the Government has a weak case.  If the Government has evidence that overwhelmingly shows guilt, then they can keep all their exculpatory evidence.  In fact, they can pretty much do whatever they want because the guilty bastard does not deserve a fair trial, nor even the appearance of a fair trial. 
     
    I wonder what would happen if the standard was that if the government broke the rules, then the conviction gets reversed de facto, even in those cases where the evidence of guilt is overwhelming.  Perhaps each and every prosecutor, instead of the vast majority of them, would begin erring on the bright side of right in handing over evidence, filing motions, and making arguments.  But, when the Appellate courts take the brave step of naming the TC or SVP in its opinion, yet does not provide the appellant any relief because “the evidence of guilt was so overwhelming that the error was harmless beyond a reasonable doubt,” then there is less motive to ensure these errors do not occur.
     
    If C.A.A.F. doesn’t reverse considering the Hills and Brady issues, maybe I can see if Charles Gitten’s firm is looking for an attorney down in Georgia.  I’m pretty good at uncovering specious claims made by crazy females seeking custody of their kids, maybe I can transfer that skill to personal injury claims for big insurance companies who are defending false injury claims in order to get money.  Not that I’m taking any more Courts-martial any time soon, anyways.

  3. stewie says:

    kf, you don’t believe what you just wrote. Accused murders, on live video, three people. He did it. No doubt it’s him, as he held up his long form birth certificate and smiled for the camera after committing the murders. There was a witness to the crime who testified, but that witness had a bias against the accused because the accused stole his girlfriend away from him at a party. The government knew of this bias but didn’t tell the defense.  Or make up whatever minor Brady violation you want to go with this.
     
    Your solution would be what? re-trial? Dismissal? Or would you affirm the conviction? If your answer is, nope I would de facto reverse the conviction, with all due respect that’s cray cray.
     
    The real solution is both naming counsel and professional harm to intentional Brady violations (or repeated violations whether or not intentional). That second part will do the job of keeping prosecutors in line without resulting in cases being overturned or retried because of an issue that if rectified wouldn’t have changed the trial one bit.

  4. Lieber says:

    Stewie,
    I don’t know, I think Brady is a pretty big deal.  I wouldn’t be opposed to a new trial in that scenario.

  5. k fischer says:

    Stewie,
     
    Thanks for telling me what I believe and what I don’t believe. 
     
    Yes, I believe that in the case you described the court de facto reversed the conviction, then prosecutors who play stupid, remain willfully ignorant, or are just plain dirty would probably take steps to ensure that the accused is given a fair trial. 
     
    And, I did not advocate that this be the solution in your absurd set of facts that will never happen, I merely pondered what would happen in that case.
     
    Quite frankly, I find interesting the Australian rules, which require that the Court ensure the Accused receives a fair trial and requires the Prosecutor to ensure the Court has the “whole picture.”  It also provides in criminal cases the jury to vote on a finding of “Innocent beyond a reasonable doubt” in addition to Not Guilty or Guilty beyond a reasonable doubt, so that an accused could be fully vindicated. 
     
    Here’s a hypothetical for you Stewie:
     
    Biological Child of Accused alleges during forensic interview that she was molested by Accused in Texas beginning, Germany, and Georgia.  She said it began in Texas shortly after her birthday, and it was in the spring because her birthday is in the Spring.  She was born on 31 May 2007.
     
    Accused is charged by Government for molestation on numerous and divers occasions beginning in June 2012 in Texas, then January 2013 in Germany, then in July 2014 in Georgia.  She went to visit with her mother from Texas in the summer of 2012 at the latest on 15 June 2012.
     
    The DC argues that the child has been coached at the 32, so baby momma could regain primary custody that she lost, and the 32 officer recommends dismissal of the charges.
     
    Let’s say the Accused’s ERB indicates that he was deployed to Kuwait between January 2012 until 17 June 2012, and mother knows nothing about his military career.  This means that there is no way that he could have been sneaking into her room any time in the spring near her 5th birthday in Texas in 2012 because he was in Kuwait and she had already gone to her mothers in Colorado by the time he returned on 17 June 2012.
     
    What duty does the Trial Counsel and SVP have to ensure this child is telling the truth?  Have they failed their duty to investigate the charges to ensure the accused actually was present to commit the crimes?  Do they have a duty to read that ERB to marry up the allegations with known events according to the child?  Would a de facto reversal policy encourage or discourage them from finding out this information and doing a better job?
     
    This is just completely hypothetical.  I know that if the accused was convicted and this was not disclosed to defense counsel who missed it, then there would likely be an IAC complaint made against DC.  This certainly would not be harmless beyond a reasonable doubt. How worried would you be if a case like this occurred?  What if it occurred and resulted in an acquittal?  What if it resulted in a conviction?
     
    I just don’t really see the downside for TC’s holding back Brady, keeping evidence out of the purview of the panel under 412, 401, or 403 that probably should be seen by the panel, or making arguments how a panel hasn’t heard any evidence of a bad act of a witness and/or when the Government has filed a motion in limine to keep the panel from hearing the evidence that the Defense would have admitted.
     
    All I’m saying that if the rules were a bit more draconian against the Government, then I’m pretty sure they would bend over backwards to make sure that the Accused had everything they needed to defend themselves and be provided a fair trial.  And, if it means that a murderer caught on tape showing his long form birth certificate (I didn’t miss what you did there and you are confusing me with CD) during a murder is required to be retried because a prosecutor didn’t hand over exculpatory evidence, then that kind of stuff in closer cases would probably not occur and innocent men would not be incarcerated.  And, the Government counsel who didn’t do what they were supposed to do in represented the United States of America would be blamed.

  6. stewie says:

    Brady being a pretty big deal doesn’t equate to a new trial in my scenario IMO. One does not automatically flow to the other. There are limits to every rule. No real purpose is served other than an extreme black/white approach which we almost never apply in criminal law save for very few exceptions for very good reasons.
     
    And I don’t know the facts of this case, I was merely speaking to the idea that Brady is a “de facto” rule that any violation should result in automatic retrial no matter what (which is the opposite of what Brady v. Maryland said).  Brady requires evidence to be material, and that means you need prejudice.  See e.g. Strickler v. Greene “(a) There are three essential components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”
     
    So this is pretty standard stuff here at least in the precedent part and the framework to be used to analyze. I don’t know the facts of this case to speak on whether or not the analysis was done correctly, but the idea that any and all failures to turn over exculpatory evidence either must equal a Brady violation and/or must result in a new trial, just ain’t true.

  7. stweie says:

    You’re welcome kf, because your example proved my point. You crafted it in such a way as to make sure that there would be, in fact, possible prejudice because we are talking about evidence about whether or not the accused was physically present to do a crime in a crime where the only main evidence is someone’s accusation.
     
    My hypo was “silly” but it set up a situation for purposes of discussion where there was clearly no prejudice at all. Using an extreme situation to make a point.

  8. stewie says:

    I’ll caveat this…looking further, I found a couple of states that actually don’t require the evidence to be material to result in a violation.  Then again, I found several other states (e.g. LA and PA) that don’t permit dismissal for ANY violation of Brady, and I found nothing to suggest any State automatically mandates a retrial for any and all Brady violations (even the states that don’t require materiality).

  9. k fischer says:

    Are you saying my hypo is “silly?”  I.e., Guy was tried after 32 IO recommended dismissal and story about the starting date according to the vic was impossible as easily provable by the Accused’s ERB, and mother did not know it was impossible when she, as defense argued, coached the kid to lie, so she could get back custody. 
     
    Are you thinking, “Ain’t no way an Army prosecutor, SVP, or SJA would allow that case to see the inside of a Courtroom!”? 
     
    And, if there was such a draconian rule that you set up with your extreme situation, then the prosecutors in the facts above would have worked a little harder to see if the vic’s story could be disproved?

  10. stewie says:

    No, I was quoting you calling my hypo “silly.” It’s kinda why I put it in quotes, and I don’t tend to quote myself given that I’m, ya know, speaking.
     
    You can accomplish plenty of wonderful things without “draconian rules.” But hey, death penalty for speeding! No one would ever speed again. Or maybe we can do that thing from that really bad ST TNG episode where aliens put up white tape and any violation within that area means instant death.
     
    Poor Wesley.

  11. k fischer says:

    Let me ask you a different way, do you think my set of facts are silly?  Do you think that what I described would never happen?  What effect, if any, do you think a more draconian rule would have on the prosecutors to do their jobs a little better under my hypothetical, so that an innocent man would not be tried at a Court-martial?

  12. stewie says:

    I don’t think your set of facts is silly kf. It’s a wonderful set of facts. It’s the best, biggest, most luxurious set of facts.  It’s got all it’s real hair.
     
    I said your hypo clearly established prejudice. I don’t think the imposition of a draconian rule that causes other harms is required. Nor do I know if a draconian rule would ever stop unintentional Brady violations or violations born out of ignorance. I think likely not. That’s why we have an appellate system. To catch these errors. Coming up with draconian rules to attempt to stamp out something has worked pretty darn rarely in human history and they usually have a twofer of causing other problems.
     
    And the comment that you “don’t see the downside to TC not following Brady” is pretty silly. It presupposes that no one has ever had a case dismissed because of Brady, or retried or any other suitably serious consequences. That somehow Brady is a toothless entity merely because it takes prejudice into account.

  13. a. hernandez says:

    Isn’t the issue that there are no consequences for TC’s or their OSJA chains of command for ignoring their discovery obligations?   Whether from a supervisor putting some bad paper on somebody’s record for purposefully ignoring their duties to prosecute a trial ethically or from trial judges protecting ‘the system’ by not holding TC’s feet to the fire, has anyone seen a TC, Chief of Crim Law, DSJA or SJA get in trouble for gross Brady or other trial issues?  Not including being incapable to keep up with their case load; I think must of us have seen people who just did not like trial work or were not put together the right way to handle it.

  14. stewie says:

    Completely agree. There should be ramifications vis-a-vis everything from counseling to bad OERs in moderate cases all the way to ethics investigations in egregious cases.  I don’t think a first time small one particularly for junior counsel deserves more than counseling, we are after all still putting in very junior counsel right into cases. But I think that is the right venue to explore and insure that TC pay a price if they have blatant or egregious violations of Brady.

  15. a. hernandez says:

    My apologies, meant to type ‘most,’ not ‘must.’

  16. Matt says:

    I think a real problem is how often military counsel are moved around.  At least in the Army, you are lucky to get more than a year or two of TC experience before being moved to something else.  A lot of mistakes get made because we lack institutional knowledge and personal experience.  Then, when you have cases of intentional misconduct by a TC, how often does it result in anything negative for that TC?  By the time the case makes its way through CAAF, that TC has almost always moved on to something else.  Can his ADLAW or OPLAW boss give him a negative OER for something he did in a previous assignment?  Not likely.

  17. Vulture says:

    You know Kyle, I also learned about another lesser known Supreme Court case called Buck v. Bell.  As long as that procedure is not legal the Military Justice shops in JAG offices around the globe will continue to grow.  Like Concerned Defender’s, fields and fields, TC’s will thrive and multiply.  All the while the meager Defense offices will churn and plow in hopes of seeking that grain of wheat in the chaff. 
    I’m sure the Military Justice system is not worse off with you in it.

  18. Lieber says:

    Matt calls it.  An inevitable unintended consequence of our insistence on replicating the line officer career model (never mind that it makes no sense for lawyers).

  19. k fischer says:

    Matt/Lieber,
     
    I agree that an OPlaw boss is not going to gig an OER, but certainly consideration of a LOR from TJAG that requires a response from the TC might be a worthy endeavor.  And if by the TC’s response, he shows that he/she doesn’t get it, then perhaps it should be placed in the performance fiche. 
     
    Nowadays, I don’t blame the TC on a Sex case that is worthy of being labeled Nifongian.  Stewie’s right.  They’re young and it really depends on how badly they screw up.  I am more inclined to blame the SVP who ought to have the experience to look for exculpatory evidence and perhaps head off that bs case at the 32.  Of course, an embarrassing whipping in court by a minimally competent defense counsel is sometimes a better tutor to a young TC than an SVP who dismisses a case after the 32.
     
    Vulture, forced sterilization actually was ruled constitutional under the 14th amendment back in 1927 in Buck v. Bell, and has not been reversed.  Shocking, I know.  I remember churning and plowing at the Ft. Benning TDS office.  I took a lot of cases to trial and only had one case that resulted in a sentence longer than what the Government was offering.  It was a lot of fun.  That’s when I had no choice, but to defend guilty people.  Thankfully, I get to choose who I represent as a civilian and only take cases I think are winners, or at least have a clear path to winning.

  20. stewie says:

    Lieber, you won’t get any disagreement from me on the need to add a crim law track and not be so rigid about broadly skilled. Learning ad law ain’t that hard…learning op law isn’t really all that hard, being good at crim law takes some time and it’s the main area of law in the military where the ground changes all of the time.
     
     

  21. Vulture says:

    KF.  Hmm.  I gotta go look at that again.  SDO’Conner mentioned it in her book and it seemed like she said I was overruled.  Either way I think that euthanasia is going to be tricky with the new nominee so maybe things are looking up.

  22. k fischer says:

    She’s wrong.  I looked it up on westlaw.  Plus, there’s this:
     
    2. Buck v. Bell (1927): “Eugenics? Yes, please!” the Court declared in this terrible decision which still stands as good law. In an 8-1 decision written by Justice Oliver Wendell Holmes, the Court upheld the forced sterilization of those with intellectual disabilities “for the protection and health of the state.” Justice Holmes ruled that “society can prevent those who are manifestly unfit from continuing their kind” and ended the opinion by declaring that “three generations of imbeciles are enough.”
     
    I’ve seen some people at Wal-mart and the Px who would probably qualify for sterilization to protect society.

  23. vulture says:

    I assume without looking that Brady v. Maryland wasn’t on the list.  Gov’t take note.

  24. Philip D Cave says:

    I just don’t really see the downside for TC’s holding back Brady, . . . or making arguments how a panel hasn’t heard any evidence of a bad act of a witness and/or when the Government has filed a motion in limine to keep the panel from hearing the evidence that the Defense would have admitted.

    On the second part about the MIL, there are several points I think.
    When a party does that, should the MJ allow the defense to seek to reopen the merits and ask for reconsideration of the denied MIL, based on the trial counsel’s argument–seems like the TC opened the door by argument, which can now be rebutted.  This would be a suitable punishment for taking an undue advantage.
    IMHO, a TC argument in such circumstances is unethical–they are arguing something they know to be false or likely false. IMHO, the “missing witness or evidence” argument is unethical if the party making the argument caused the evidence to be excluded, e.g., through a MIL.  I think at that point the other party can ask the judge to allow an argument to rebut that statement, perhaps using the invited error doctrine (Improper argument may open door for otherwise improper response.  See U.S. v. Espronceda, 36 M.J. 535 (A.F.C.M.R. 1992); U.S. v. Stadler, 44 M.J. 566 (A.F.Ct.Crim.App. 1996) (on findings) aff’d, 47 M.J. 206 (C.A.A.F. 1997)).  I don’t think the party can argue to exclude evidence and then argue to the fact-finder that there’s no evidence before them on that particular issue or point.  (Cf. Graves v. United States, 150 U.S. 118 (1893).)  Defense counsel can make this same error, so this is a caution for both sides.  It’s just that the defense is the party most frequently keeping evidence out and then being used to keeping the door closed.  DC should be alert to a TC keeping out evidence under MRE 412, but then trying to use the ruling as a sword.  USvSavala is an example of how the TC can do that.

  25. stewie says:

    I did the re-trial for a case (name escapes me) where a case was sent back because the TC did the very thing of getting a MIL barring evidence, and then saying that there was no evidence for the thing they got barred.
     
    Ultimately her punishment was reduced, so…downside.
     
     

  26. k fischer says:

    Sheldon C……..I mean Stewie,
     
    Please explain the downside, i.e. the adverse consequence that the TC suffered for doing that and what steps were taken to ensure that TC did not make that same mistake again, or train his or her trial counsel as a CoJ to make that same mistake again.
     
    Btw, the only case I could find involving a female is: 
     
    Adding insult to injury, the Government exploited the very evidentiary limitation it requested in closing argument. “Are we supposed to believe that [HM2 C] or somebody else went out and spent $2,700.00 on tools to set this up because she’s mad at somebody? That strains all logic; it’s just not credible.”
    U.S. v. Collier, 67 M.J. 347, 357 (App. Armed Forces 2009)
     
     
    Is that the case?  If so….Brozinga!

  27. stewie says:

    The downside is that particular officer has not exactly been placed in positions of much responsibility and their career is not exactly flourishing. They got promoted one more time but that was during the period when we weren’t following DOPMA and pretty much everyone was getting promoted all the way up to O5.
     
    And no, that’s not the female/case in question. I’m not going to reveal the case so as to not reveal the attorneys involved.
     
    I have no idea what the Sheldon C reference is.

  28. k fischer says:

    Sheldon Cooper.  You know, the protagonist from “Big Bang Theory.”  That guy’s hilarious and never wrong.
     
    Meeh.  I guess that’s an example of what could happen, but I would venture that the vast majority of people who get named in opinions or whose actions are criticized in appellate opinions don’t suffer the same consequences.  But, it might be a good policy to initiate a LOR, which could be properly rebutted, and TJAG could make a filing decision.  Perhaps, considering counsel’s young age, the culture at the OSJA to be overly aggressive at prosecution, and whether the TC having a senior co-counsel would be mitigating circumstances that warranted the LOR being destroyed.  I understand how sometimes in the heat of battle, counsel might say or do something inappropriate and as long as it is not a repeated practice, then that counsel could learn and mentor younger counsel not to make the same mistakes.  Not everyone had my SJA, CoJ, and STC as their first assignment as a TC.  That was a good crew. 

  29. stewie says:

    Horrible show, and while I am fairly hilarious, I’ve never once pretended to be never wrong, so not sure the relevance.
     
    I have no idea what consequences the majority of people who get named/criticized get. Some may get a talking to, some may see their careers stall because of a garnered reputation, some might be promoted to greater things. It’s probably a mixed bag.
    The problem is the appeal process takes a long time, and by the time you reach the point where someone is named, they could, for example like a recent case, already be out of the military, or they could be out of crim law, or in a stalled career. 
     
    I’m less concerned with punishing after the fact, than with creating criminal law specialists at every level so that young counsel are brought up correctly. As with most things, you solve the problem better with education before than punishment after.