CAAF decided the Air Force case of United States v. Claxton, 76 M.J. 356, No. 17-0148/AF (CAAFlog case page) (link to slip op.), on Thursday, July 6, 2017. Finding “gross governmental misconduct” in the failure to disclose the fact that two prosecution witnesses were confidential informants – and identifying by name the prosecutors, the chief of justice (senior prosecutor), the staff judge advocate (commander’s lawyer), and the commander – a four-judge majority finds the nondisclosure to be harmless and affirms the convictions and the decision of the Air Force CCA.

Judge Stucky writes for the court joined by all but Chief Judge Erdmann, who dissents and would reverse the convictions.

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 a second 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 involved 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, including two cadets who were also confidential (undercover) informants for the Air Force Office of Special Investigations (AFOSI). But their informant status was not disclosed to the defense despite a specific discovery request for details about any confidential informants. Slip op. at 2. After trial, however, one of the informants disclosed his status to a newspaper, which printed the fact. CAAF then ordered a DuBay (post-trial fact-finding) hearing, after which the Air Force CCA reviewed the matter and found a Brady violation but no prejudice to Claxton. CAAF then granted review to determine:

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.

(note: CAAF also granted a Hills trailer issue, but subsequently vacated that grant. See slip op. at 1 n.1).

Criticizing everyone from the trial counsel (who failed to disclose) to the then-acting Judge Advocate General of the Air Force (who mishandled an Article 73 petition for a new trial based on the failure to disclose), Judge Stucky finds that “it is profoundly disturbing that officers of the court would engage in such conduct.” Slip op. at 10. Yet this great disturbance wins Claxton nothing, as the majority is convinced that the circumstances of the case leaves “no reasonable likelihood” that the fact that two witnesses were confidential informants could have affected the findings or sentence. Slip op. at 9. Chief Judge Erdmann, however, finds that “due to the nondisclosure, the defense was denied the ability to pursue a strategic option and present their best defense.” Diss. op. at 3.

The majority concludes that nondisclosure was harmless because “the informants’ testimony was relatively unimportant and was for the most part cumulative with that of other witnesses,” with respect to one of the sexual allegations, and because the testimony of one informant “was corroborated by several other eyewitnesses who were not informants and by Appellant’s admission” for the other allegations. Slip op. at 9. This conclusion is based on the following standard:

In military practice, “[w]here an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt.” United States v. Roberts, 59 M.J. 323, 327 (C.A.A.F. 2004) (concluding that shifting the burden to the government “reflects the broad nature of discovery rights granted the military accused under Article 46[, UCMJ, 10 U.S.C. § 846 (2012)]”). “Failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial.” United States v. Coleman, 72 M.J. 184, 187 (C.A.A.F. 2013).

Slip op. at 5-6 (alteration in original). Here the majority finds “no reasonable likelihood that this evidence [the informant status of two witnesses] could have affected the judgment,” and so it is harmless beyond a reasonable doubt and the convictions and sentence are affirmed.

But Chief Judge Erdmann takes a different approach. While he “concur[s] with the majority’s comments regarding the Air Force’s gross misconduct in the prosecution of this case,” diss op. at 1 n.1, he applies a different test for prejudice:

I believe there is a bigger picture that the majority does not address. In nondisclosure cases, we have considered the cumulative effect of the nondisclosure rather than merely speculating as to what the result would have been without the confidential informants’ testimony. See United States v. Stellato, 74 M.J. 473, 490 (C.A.A.F. 2015). In conducting this assessment, we have adopted the following analysis: (1) whether the nondisclosure hampered or foreclosed a strategic option; (2) whether the nondisclosure hampered the ability to prepare or present its case; (3) whether the nondisclosure substantially influenced the factfinder; and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively. Id. (citations omitted). This court “need not conclude that Appellant’s defense would have succeeded. Instead the inquiry should focus on whether the military judge’s ruling essentially deprived Appellant of [his] best defense that may have tipped the credibility balance in Appellant’s favor.” United States v. Collier, 67 M.J. 347, 356 (C.A.A.F. 2009) (alteration in original) (internal quotation marks omitted)

Diss. op. at 1-2. This is a much broader view than that employed by the majority, and it leads to a different result as Chief Judge Ermann finds all four prongs of the Stellato assessment to be satisfied.

For the first prong, Chief Judge Erdmann notes that Claxton’s appellate defense counsel argued that the informants may have set Claxton up to commit the offenses, a defense that was hampered or forclosed by the nondisclosure. “While this ‘set up’ defense was certainly not a ‘slam dunk,’ it may have been the best defense available to Claxton – had he known it was available.” Diss. op. at 2.

For the second and fourth prongs: “Despite the government knowing that two of the witnesses were confidential informants, it deceptively leveraged the defense and the panel’s ignorance of the informants’ status to bolster the credibility of the victims and witnesses. This information hampered Claxton’s ability to prepare and present his case and, had it been disclosed, would have allowed the defense to rebut the government’s arguments more effectively.” Diss. op. at 3.

Finally, for the third prong Chief Judge Erdmann explains that while “we have no way of knowing” how the members would have reacted to learning that “two principal government witnesses, who had been involved in all the incidents, were government agents,” he concludes that “certainly it would have had some effect on their consideration of the government’s case.” Slip op. at 3.

Accordingly, Chief Judge Erdmann finds that “the nondisclosure was not harmless beyond a reasonable doubt” and he would reverse “and remand the case for a new trial.” Diss. op. at 4.

Claxton’s conviction survives but the Air Force JAG Corps hardly escapes unscathed. In the concluding section of the majority opinion Judge Stucky writes:

[W]e cannot allow the gross governmental misconduct which occurred in this case to escape unremarked. It is unclear from the record whether the trial counsel were aware of Cadet Thomas’s status, but it was their “‘duty to learn of any favorable evidence known to the others acting on the government’s behalf …, including the police’” and disclose it to the defense. Strickler, 527 U.S. at 281 (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). Here, there is no evidence of record that the trial counsel made any attempt to inquire as to the status of Government witnesses as required by the defense discovery request.

Of additional concern is the fact that responsible judge advocates, including the staff judge advocate and the chief of justice, knew that Cadet Thomas was a CI and either did not inform the trial counsel or, if they did, did not ensure that the trial counsel performed their duties under Brady. We do not know whether these officers acted at the behest of AFOSI, so that that agency could continue its undercover activities, or for some other reason. In any event, it is profoundly disturbing that officers of the court would engage in such conduct. The fact that, under the applicable standard, the Government has managed to salvage this conviction cannot erase the blot on the Air Force legal system that such conduct must cause.

Slip op. at 10.

Nevertheless, in a results-oriented institution like the military, and at a time when Government bloopers are commonplace, it’s easy to wonder if the Air Force legal system will even see (nevermind acknowledge) a blot over this salvaged conviction. Instead, it might just think: where’s the prejudice?

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

26 Responses to “Opinion Analysis: “Gross governmental misconduct” is remarkable but harmless in United States v. Claxton, No. 17-0148/AF”

  1. Vulture says:

    “The discipline that makes the soldiers of a free country reliable in battle is not to be gained by harsh or tyrannical treatment.  On the contrary, such treatment is more likely to destroy than to create an Army.”  That may have a few words wrong, but that is from Schoffield’s quote.  There is a tyranny in this majority that is the tyranny of the majority.  
    It may be that all crime is related to money, but the real sin is to dig so deeply in contemplation only to have a place to abandon the body.

  2. J.M. says:

    In other news, Mike Nifong and Mike Murphy were seen attempting to enlist this week.

  3. Isaac Kennen says:

    This court has several times used vigorous language in denouncing government counsel for such conduct as that of the prosecutor here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel’s alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, ‘Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules.  If prosecutors win verdicts as a result of “disapproved” remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.’ Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court — recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.

    Darden v. Wainwright, 477 U.S. 168, 205-06 (1986) (JUSTICE BLACKMUN, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS, dissenting) (oyez).

  4. AF Capt says:

    Side point; all JAGs not retired have been promoted.

  5. Bionic Barry Dylan says:

    Good to know the USAF JAG Corps just recently booted out so many good young officers and JAGs, applying highly questionable standards, assuming there was any thought process at all about who was retained and who got axed, and now we are seeing these kinds of facts coming out of that service again and again.  Coincidence?

  6. a. hernandez says:

    “Although the prosecution did not disclose that the two witnesses were confidential informants, there is no reasonable likelihood that this evidence could have affected the judgment of the trial court.”  And yet, the accused was acquitted of wrongful sexual contact with KA and the CCA found the testimony about an assault  specification was not enough to corroborate something in one of his statements to the AFOSI agents.
    So, where’s the deterrent for the government to stop violating the due process rights of the accused? Were these professional Federal Agents and Officers of the Court actively perpetrating a fraud upon the court?  Or were they only quasi ‘federal agents’ and ‘officers of the court’ because they practice and participate in a second rate justice system where mistakes will happen and all its okay as long as they mean well?
    A case with serious charges and an unsympathetic defendant would have been the perfect vehicle to show the government that how they behave has consequences. To ignore the cumulative effect of the overall testimony of all witnesses in this case seems like asking too much of any fact finder. 

  7. J.M. says:

    Has a military lawyer ever been disbarred or publicly disciplined for misconduct during a case? 

  8. Bionic Barry Dylan says:

    Surely some of these recent decisions, if brought to the attention of the appropriate state bars, would result in action of some sort.

  9. DCGoneGalt says:

    AF Capt:  If true, sad.  But not surprising.
    a. hernandez:  “Where is the deterrent?”  Public naming is a start.  If the state licensing authorities catch wind that’s a running start.  I don’t see this as the worst case out of the AF in the last few years so it was surprising that the names were dropped but it seems to be CAAF signaling that it is the end of the line for Brady shenanigans.  I’ve always had problems with overturning convictions based on professional misconduct when the evidence was overwhelming (not saying this case is) but I don’t have a problem with allowing the result to stand and sanctioning the individuals in those cases because I honestly think it is a more effective deterrent, especially in the military where when a case is overturned 3-4 years later most will have moved on to a different job and/or retired/separated/promoted.

  10. Ed says:

    Bionic Barry Dylan
    Paul Barzler, the former SJA is a member of the Florida Bar

  11. Former SJA says:

    Is there anyone who believes the majority actually applied the Roberts standard (Government must show that the “nondisclosure was harmless beyond a reasonable doubt”) in this case?  Or that it does in any case?  It seems clear that the court begins its analyses in these cases from the perspective of a conviction, not the other way around.  By doing so, CAAF doesn’t truly apply its own standard, and the burden to overcome a conviction in the face of government misconduct never actually shifts from the appellant.

  12. Alfonso Decimo says:

    The DuBay hearing should have developed more facts about the CIs.

  13. Jerry Gallo, Esq. says:

    “It is unclear from the record whether the trial counsel were aware of Cadet Thomas’s status, but it was their ‘duty to learn of any favorable evidence known to the others acting on the government’s behalf …, including the police’ and disclose it to the defense.” Here, there is no evidence of record that the trial counsel made any attempt to inquire as to the status of government witnesses as required by the defense discovery request.” (citations omitted).
    Why, then, drop the trial team’s names into a footnote? If the record is unclear on this point, how does a public shaming (if we’re agreeing that’s the overriding reason to include an advocate’s name and rank in the opinion) contribute to CAAF’s purpose? From its website: “Through its decisions, the Court has a significant impact on the state of discipline in the armed forces, military readiness, and the rights of servicemembers. The Court plays an indispensable role in the military justice system.”
    I understand the frustration the judges and their clerks might feel reviewing this record — especially after tracking its procedural history over a few years and getting limited answers back from the DuBay hearing — but if the evidence CAAF is presented doesn’t demonstrate negligence, bad faith or something in between by an individual actor, I doubt the usefulness in naming names (i.e., “By inflicting infamous punishments for crimes that are not reputed so, we destroy that idea where it may be useful.”). Put another way, if the two attorneys prosecuting the case might have taken every required step to satisfy their professional obligations and still failed, there’s little reason to excoriate them by name; focus on whether the accused received a fair trial and grant him the relief, if any, deserved.

  14. TC says:

    Informants are so rarely used in the military (especially in non-drug cases) that I can’t imagine why a TC would ever think to ask OSI whether any of the witnesses in a sex assault case were informants.  If an informant were involved in a case, I’d expect that fact to be in the OSI report 100% of the time.  It clearly wasn’t in this case, so I guess going forward I’ll have to ask in every case, but I don’t fault the TC here for not asking.

  15. k fischer says:

    Jerry Gallo,

    focus on whether the accused received a fair trial and grant him the relief, if any, deserved.

    This isn’t pre-2007!!!!!  The primary focus nowadays is to ensure that victims receive justice, not that the accused receives a fair trial, especially in a sexual assault case.
    It is troubling that the COJ and SJA knew about Cadet Thomas’s CI status.  But, the next question is whether or not they knew about the Defense’s discovery request requesting the CI status of all government witnesses.  If they did, then the next question is whether they knew the TC’s did not disclose it.
    The most troubling thing to me is that “an AFOSI agent told former Cadet Thomas not to reveal this status during his pretrial interviews with trial defense counsel.”
    It’s been a while since I was a TC, but I think that AFOSI agent might have violated Article 134, paragraph 60, Obstructing Justice.  Want to know why AFOSI agents think it’s mighty fine to instruct CI’s to commit lies by omission or outright lie?  It’s because nothing happens to them.  And, nothing happens to them because the Government did not have to retry the Accused.
    All that being said, I kind of agree with Judge Stucky that the error was harmless BARD.  I mean, what did the CI’s testify to that was so germane to the Appellant’s guilt?  Sounds like Claxton confessed according to these facts, which I understand could be completely slanted against Claxton and not adequately explain a very valid defense that would have shown the utter weakness of the Government’s case.

  16. ATC says:

    You must not have truly witnessed the glory of OSI agents.  They literally have a checklist of investigatory processes that they can do.  One is for CIs and they regularly make random witnesses in their investigation a CI so that they can tell HQ that they’ve worked a CI case.  You literally have to ask them in every single case because they will argue that it’s “tradecraft” and no one should know.

  17. TC says:

    Fair enough, that’s definitely not the way it works with NCIS. Thankfully.

  18. LE says:

    TC and ATC,
    I guess I’m at a loss on why the fact two witnesses were CIs is important to trial council in this case.  As I read the opinion, and following this case (E.T.’s public fight with AFOSI), it appears they acted as witnesses, not as CIs; and the Govt never requested any deference for them being CIs (protection of identity for example).  My experience with non-DoD LEOs is they will not disclose the status of an individual being a CI solely to eliminate the appearance of a Brady violation.  Granted, Fed law and UCMJ operate a bit different, but taking Brady and Strickler the way they did (applied in civilian courts) seems far more extreme that what is considered acceptable by the Courts outside of UCMJ.  
    As for NCIS operating differently; when I worked with them, they use CIs very differently than OSI and rely more on undercovers…and their cases were normally going to District Court, not UCMJ.

  19. TC says:

    It appears that at least one of the CIs was working with OSI in order to prevent getting kicked out of USAFA (odd factual scenario, but that’s my impression from the decision).  If working with OSI keeps him enrolled, then presumably providing testimony favorable to the government helps him as well.  Therefore, he has a potential bias, which the defense should be permitted to inquire into during x-ex.

  20. k fischer says:

    To piggyback off of TC’s comment, Judge Vardemann indicates that the Government during closing argument made a point that Thomas was the appellant’s friend, yet he still testified against him.  It makes it sound like he would have had a reason not to testify against him, but he was doing it because it was the right thing to do.  So, if the Defense had known of Cadet Thomas’ CI status, then he would have had a motive to please the Government and maybe his unbiased testimony would have been impeached.

  21. Matt says:

    Want to know a good indication of when to ask OSI/CID if any witnesses are informants? When the defense requests that information in a discovery request!  This isn’t rocket science.  The defense specifically requested the information.  The TC either ignored the request and failed to discover Brady material which they should have found, or found it and failed to disclose it to the defense.  Everybody now knows that there will be no consequences to any of the prosecution members involved, and this case will be forgotten until it is cited in yet another case discussing the troubling conduct of the prosecution that doesn’t warrant relief…

  22. Rosita Walker says:

    The CI was not working for OSI because he was in fear of getting kicked out. He was working for OSI because one of his friends became a victim. No one in leadership has been held accountable. The only one that has sacrificed all is Former Cadet Thomas. He gained nothing and is continuing to pay due to an honorless leadership. He has laid it all down for the blue and we have left him behind. Think about the message sent to the rest of the young officers when they made an example of Cadet Thomas for speaking up, Col. Tilo, the General all of them literally stepped all over him and continue to do so today. No accountability for leadership. 

  23. Charlie Gittins says:

    I have represented service academy students for many years.  One reason a cadet/Midshipman would testify for the G is to remain enrolled to avoid having to pay back the coast of education, which they must do if kicked out for conduct/misconduct in their junior or senior years.  The bill is well over $100,000. That price alone is good reason to be a CI and would be powerful incentive to testify for the GOV.  Using cadets/mids as CIs, in my personal opinion, is BS. The young man/woman has no access to real counsel and the LEOs make every effort to convince them not to seek competent counsel to give them unbiased advice.  Combine that with the general competence of CID/NCIS/AFOSI as “investigators”  (they are “let’s pretend” investigators) and you have a system that is set up for failure and injustice.    

  24. TC says:

    As I said, that was just my impression from the decision.  But if his only involvement with OSI came from this case, why was he a CI as opposed to just being a witness?  A CI suggests some sort of undercover operation.  What were his duties as a CI?  And are you saying he was kicked out because of his participation in this case?  What do you mean by “no one in leadership has been held accountable?”  Accountable for what?

  25. Bill Cassara says:

    When I retire, you can put this case on my “tombstone” as one of the reasons why. The system is now irretrievably broken.

  26. Rosita says:

    This was not his only involvement with OSI. If you follow the Cadet Thomas saga, you will find that he is mentioned and a vital part of almost every case concerning both criminal narcotic usage by cadets and sexual assaults. I find myself looking at things from both the macro/micro perspective of what has occurred. Notably, Cadet Thomas was also a “vital asset to the investigations of 3 total convictions of sexual assault” (AF IG Inquiry 2014, DoD IG Report 2016). Yet, he did not give testimony to those other cases under the guise of witness or CI? Conclusion being, the Claxton case is directly linked to his disenrollment and thus resulting in so much attention. In total, Cadet Thomas has worked on over 25 criminal cases with several leading to convictions or administrative punishment. There is no “suggestion” of undercover work. If you refer back to the material covering “Operation Gridiron”, Cadet Thomas was intact working by undercover means. Given the Claxton case are the bulk of demerits leading to his ultimate disenrollment, I absolutely say he was kicked out because of his participation of the case. This is proved positive by the USAFA response and current claims that “Cadet Thomas was not a CI at the time of the Claxton case”. Now we know that wasn’t true which sheds a whole new light on this story and explains ‘why’ there was such a hinderance to admit that Cadet Thomas was a CI at the time of trial. It would imply his demerits and disenrollement are in error and that accountability would fall on USAFA, AF and AFOSI leadership.