Opinion Analysis: Finding “deeply troubling” conduct by trial counsel, CAAF affirms dismissal with prejudice in United States v. Stellato, No. 15-0315/AR
CAAF decided the interlocutory Army case of United States v. Stellato, __ M.J. __, No. 15-0315/AR (CAAFlog case page) (link to slip op.), on Thursday, August 20, 2015. Finding significant flaws in the way the trial counsel (military prosecutor) handled his discovery obligations, CAAF affirms the pretrial ruling that dismissed with prejudice charges involving alleged sexual assault of a child, concluding that the military judge did not abuse his discretion in finding discovery violations and finding no lesser remedy adequate. CAAF reverses the decision of the Army CCA and reinstates the military judge’s ruling dismissing the case.
Judge Ohlson writes for the court. Judge Stucky writes separately, concurring in the result but disagreeing with the majority’s conclusion regarding one of the numerous discovery issues.
The accused, a mobilized reservist, was charged with various acts of alleged sexual molestation of his biological daughter, Miss. MS, from 2007 through 2009, when the child was between the ages of two and five years old. The asserted discovery violations in the case involve various items, but chief among them is a collection of materials (some of them highly exculpatory) assembled and held by the alleged victim’s mother and referred to as a “box” of evidence. Another item is a plastic banana allegedly used to assault the girl and subsequently held by civilian authorities. Other concerns involve a witness that the Defense sought to interview, and an expert whose testimony would have been favorable to the Defense but who suddenly died during delays incurred by litigation of the discovery issues.
The Defense sought multiple continuances of the trial, asserting outstanding discovery issues. The military judge granted numerous continuances, once “warn[ing] the Government that its decision to ‘take a hard stand on discovery
. . . invited disaster at trial.’ (Ellipsis in original.).” Slip op. at 10 (marks omitted). That disaster eventually arrived for the Government when the Defense moved to dismiss the charges due to prosecutorial misconduct and the military judge found “‘continual and egregious discovery’ violations by CPT Jones,” the trial counsel. Slip op. at 14. Then, “after considering ‘all possible remedies in this case’ and the requirement ‘to craft the least drastic sanction,’ the military judge dismissed the case with prejudice based on ‘the nature, magnitude, and consistency of the discovery violations’ in the case.” Slip op. at 14.
The Government appealed and in a published decision issued last November (discussed here) a three-judge panel of the Army CCA reversed the military judge, finding that the military judge “clearly misjudged the scope and magnitute of the discovery issues in this case.” 74 M.J. 501, 515 (A. Ct. Crim. App. Nov. 17, 2014). CAAF then granted review of two issues:
I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.
II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.
Yesterday’s decision reverses the CCA but does so by piercing through the CCA’s decision and “review[ing] the military judge’s rulings directly,” with CAAF concluding that “the military judge did not abuse his discretion in finding discovery violations and in dismissing this case with prejudice.” Slip op. at 15.
It is, at first glance, the most significant prosecutorial misconduct case decided by CAAF since United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (finding prejudicial misconduct in the trial counsel’s findings argument). Where Fletcher defined the contours of Government argument, Stellato defines the contours of Government discovery.