Argument Preview: Was hiding the fact that prosecution witnesses were Government informants harmless in United States v. Claxton, No. 17-0148/AF
CAAF will hear oral argument in the Air Force case of United States v. Claxton, No. 17-0148/AF (CAAFlog case page), on Tuesday, May 9, 2017, at 9:30 a.m. The case is a Hills trailer and also involves the prosecution’s failure to disclose that two of its witnesses were also undercover informants for the Air Force Office of Special Investigations (AFOSI). The Air Force CCA found error in both issues, but it concluded that both errors were harmless beyond a reasonable doubt. CAAF then granted review of two issues challenging both findings of harmlessness:
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.
Air Force Cadet Claxton was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of wrongful sexual contact of one alleged victim, attempted abusive sexual contact and assault consummated by a battery of another alleged victim, and two specifications of assault consummated by a battery for a physical altercation with two other cadets, in violation of Articles 80, 120, and 128, UCMJ. He was sentenced to confinement for six months, total forfeitures, and a dismissal.
The charges involve two separate encounters between Claxton and female Air Force Academy cadets, and a physical altercation that occurred after Claxton was confronted by other cadets about one of the encounters. Numerous witnesses testified against Claxton. But the after his court-martial (and two weeks before the Air Force CCA issued an opinion in the case):
a newspaper in Colorado Springs published a front page article regarding the recruitment and use of cadets as confidential informants (CI) by the Air Force Office of Special Investigations (AFOSI) at the Academy. Eric Thomas, a former cadet, was quoted extensively in the article describing his alleged work with AFOSI, including work on Appellant’s case.
United States v. Claxton, No. 38188, slip op. at 2 (A.F. Ct. Crim. App. Oct. 31, 2016) (opinion on remand). The news story is no longer available at a link provided in the CCA’s opinion, however it is available here. We mentioned it at the time of publication in this post.
Claxton’s defense team didn’t know that a prosecution witness was a confidential informant, and CAAF ordered a DuBay hearing (noted here) to determine the scope of this discovery issue. After that hearing concluded, “Government counsel notified the military judge and trial defense counsel that another witness who testified against Appellant at his court-martial was also a CI for AFOSI.” Claxton, No. 38188, slip op. at 4 (emphasis added). The second witness isn’t identified by name in the publicly-available materials but might be identified in Claxton’s briefs to CAAF.
We don’t know, however, because Claxton’s briefs are sealed (CAAF hearing page).
The Air Force Appellate Government Division’s brief, however, is not sealed, and it presents a straightforward argument:
Cadet E.T.’s trial testimony was extensively corroborated by multiple other witnesses and Appellant’s own admissions. Impeaching Appellant on his confidential informant status would not have caused the members to doubt the credibility of Cadet E.T.’s trial testimony or have otherwise raised a reasonable doubt as to Appellant’s guilt.
Gov’t Div. Br. at 15. The brief does not address the Hills issue.
The question for CAAF is whether the nondisclosure of the fact that two prosecution witnesses were also Government informants was harmless beyond a reasonable doubt. Resolution of that question will be fact-intensive.
• AFCCA’s first opinion
• Blog post: CAAF orders DuBay hearing
• AFCCA opinion on remand
• Blog post: CAAF grants review
Appellant’s brief (sealed)
• Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief (not posted / sealed)
• Blog post: Argument preview