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.

Case Links:
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

2 Responses to “Argument Preview: Was hiding the fact that prosecution witnesses were Government informants harmless in United States v. Claxton, No. 17-0148/AF”

  1. Philip D Cave says:

    In states around the country the absence of data such as the charging history of the informant or the number of times they have offered to give testimony in exchange for a benefit or the details of how they obtained the information makes it impossible for prosecutors to properly vet the informants themselves, let alone share this material evidence with defense counsel. As representatives of the people and stewards of the justice system, prosecutors have a responsibility to know and disclose this information.
    In response to the growing awareness around this issue, numerous state legislatures and courts, from Florida to Texas, have begun to act. This year alone, in addition to Washington, four states are considering proposals to strengthen or establish new frameworks for assessing informant testimony. Notably, while some proposals go further than others, all of these proposed reforms impose new disclosure requirements around incentivized informants.

  2. Rosita Walker says:

    After listening to the recording and viewing all the articles and testimonies from ABC nightly news and ESPN 60 I find it unbelievable that it is still the misunderstanding that ET was engaged with OSI because he was in trouble. The Academy has plainly stated that ET was dis-enrolled due to demerits. According to the BCMR the bulk of demerits where accrued while working for OSI. Which explains why OSI was ordered not to appear at ET’s MERK. The issue of no communication between OSI and the Academy is horrible. Our young cadets are being trained by those who themselves do not up hold the standard they attempt to instill in our young would be leaders. One cadet comes forward and lives out the honor code and is dis-enrolled because of it. He is actually told that he is not officer material even though EVERYTHING he has claimed has been proven true, whether by sworn statements from OSI, concluded investigations by the DOD and the BCMR. ET was dis-enrolled with the rating of a criminal never to serve in any capacity. What is wrong with our system when we cut down those that do the right thing? Why hasn’t SECAF given him his life back? Why will they not even take the time to review the reports with him since its his life that’s been stolen?  Why do we as a military and a country continue to tolerate Military Officers to use intimidation and threats to silence those who see the crimes being perpetrated but fear their commissions being stripped away as was ET.
    ET was never given the opportunity to meet with the Superintendent before being thrown out. ET was made an example in front of his classmates as he was stripped of his class ring and rank in front of his squad. Everyone knew ET was targeted by his leadership. I was there everything I just wrote is true. How is it that after all the dust settles SECAF or someone that can evoke change does nothing to give my son his life back, SHAME ON YOU SECAF, Academy Alumni, congress, lovers of freedom; step up and take care of your own. Look deeper into this case talk to ET.
    ET was not dis-enrolled because he was in-trouble its in the paperwork.