The Army CCA finds “no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.”
In a published opinion in United States v. Stellato, __ M.J. __, No. 20140453 (A. Ct. Crim. App. Nov. 17, 2014) (link to slip op.), a three-judge panel of the Army CCA grants a Government interlocutory appeal of a military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations. Senior Judge Tozzi writes for the panel.
The opinion contains a lengthy recitation of facts. The case “involves purported discovery violations over the course of several months. The accused, a mobilized reservist, is charged with various acts of molesting his biological daughter, MS, from 2007 through 2009. At that time, MS was between less than three years and less than five years of age.” Slip op. at 2.
I’m going to focus on the discovery issue that I think is the most significant: A dispute over the late disclosure of the existence of a “box” (and the term is used in quotes throughout the opinion) of evidence that was assembled by the alleged victim’s mother, Mrs. MS (notably, the alleged victim and her mother share the same initials – the CCA identifies the alleged victim as “MS” and the mother as “Mrs. MS”):
On approximately 9 February 2013, Mrs. MS, with the assistance of friends, compiled what witnesses described as a “box” of evidence relating to this case. Mrs. MS had compiled this evidence over several years since the allegations were first made and kept it in a large, color-coded binder several inches thick. She kept this binder in a green plastic file box, which she kept on the kitchen table in her home.
Slip op. at 3. The lead trial counsel (the prosecutor), Captain KJ, learned about the “box of evidence” in early 2013. But its existence wasn’t disclosed to the Defense until about a year later, in March 2014. By that time the trial had already been continued twice due to Defense concerns about incomplete discovery, and Captain KJ had been replaced as trial counsel (apparently because he was going to deploy, but the opinion doesn’t make this clear):
[T]he government revealed to the defense and the military judge in the R.C.M. 802 conference that there was a “box” of information in the possession of Mrs. MS that had not been provided to the government, let alone disclosed to the defense, and would not be available for trial as it was still in West Virginia [trial was to occur at Fort Bliss, Texas -zds]. This was the first time the “box” had been disclosed to the defense or the military judge, despite the defense receiving some of its contents in piecemeal discovery after being scanned by a friend of Mrs. MS and forwarded on a thumb drive to the government.
Slip op. at 8. The military judge then granted a third continuance of the trial dates, and the Defense filed “a motion to dismiss with prejudice due to prosecutorial misconduct in the form of repeated discovery violations.” Slip op. at 8. After hearing evidence and argument, the military judge granted the Defense motion, dismissing the charges with prejudice on discovery grounds. The Government appealed, and the CCA reverses, finding that “the military judge based his ruling upon an erroneous view of the law and, accordingly, abused his discretion.” Slip op. at 2.