The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014, and what a story it was.
First, we noticed media reports about the military judge’s ruling, in a post titled: Rape Charges Dismissed for Prosecutorial . . . Incompetence(?)
Then we noted the scheduled oral argument at the Air Force CCA.
The Air Force CCA’s decision provided plenty of details, as the court denied the Government appeal of the dismissal of rape charges that was ordered after the Government refused to produce witness notes. The CCA’s opinion revealed that the military judge found that the trial counsel committed prosecutorial misconduct by refusing to obey an order for an in camera review of the prosecution team’s witness interview notes. Moreover, the military judge concluded that dismissal was more appropriate than delay because the Government needed delay to continue its trial preparation, and the judge found that delay would “reward the party with unclean hands with that which it desperately needs.” Slip op. at 7.
That got the case onto our Top Ten list, but it wasn’t over as the the Air Force JAG certified the case to CAAF.
And then CAAF ordered the Government to re-brief the case, to address “possible controlling or adverse authority.”
Now, in an summary decision issued yesterday, CAAF affirms the military judge and the Air Force court:
No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08. On consideration of the certificate for review (74 M.J. __ (C.A.A.F. Jan. 5, 2015)), and the briefs of the parties and amicus curiae, we conclude that the military judge did not abuse his discretion in dismissing all charges and specifications with prejudice following the Government’s refusal to comply with the military judge’s order to produce trial counsel’s witness interview notes for an in camera inspection. “[A] judge is ultimately responsible for the control of his or her court and the trial proceedings,” and “[p]roper case management during a trial, necessary for the protection of an accused’s due process rights and the effective administration of justice, is encompassed within that responsibility.” United States v. Vargas, 74 M.J. 1, 8 (C.A.A.F. 2014). Because a judge has broad discretion and a range of choices in crafting a remedy to cure discovery violations and ensure a fair trial, this Court will not reverse so long as his or her decision remains within that range. See United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010); United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004). In this case, the military judge’s decision, as affirmed by the Court of Criminal Appeals, was within that range. Accordingly, it is ordered that the certified questions are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.