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.

The military judge’s analysis included the following findings of fact:

The military judge stated that in this case, “the discovery violations have been continual and egregious.” He specifically cited the government’s failure to disclose the “box” of evidence that included written denials by the accused and recantations by MS. The military judge found that the government “knew that the box existed[,]” but failed to secure it, and failed to ensure that the entirety of its relevant contents were provided to the defense, and failed to disclose the existence of the “box” until the eve of the third trial date.

Slip op. at 9. The military judge concluded that “the government violated R.C.M. 701(a)(2)(A) in regards to the ‘box'” and another item of physical evidence. Slip op. at 9. Of note, R.C.M. 701(a)(2)(A) requires disclosure of items of evidence that:

are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused.

(emphasis added). The judge also “noted that R.C.M. 701(a)(6)(A) requires disclosure as soon as practicable of evidence favorable to the defense which reasonably tends to negate guilt. However, the military judge did not expressly find a violation of that rule.” Slip op. at 9. Additionally, the judge observed that “the government ‘took a recklessly cavalier approach to discovery.'” Slip op. at 9.

The judge then turned to the question of prejudice to the Defense:

The military judge found prejudice primarily because a “key witness” for the defense, Dr. K, had died after the most recent continuance and was not able to be deposed before his death. He had interviewed MS and Mrs. MS shortly after the allegations first came to light. The military judge also found prejudice because the delays have prevented the accused’s career progression, thwarted his ability to communicate with his family to resolve custody issues, and resulted in “extreme and unwarranted” restrictions such as being relegated to an enlisted barracks [the accused is a Major -zds], being denied the ability to purchase a vehicle absent an exception to policy, being required to sign in and out to leave post, and being prohibited from drinking alcohol.

Slip op. at 10. And so the judge dismissed the case with prejudice. Senior Judge Tozzi explains that:

In deciding to dismiss the case, the military judge found no legitimate reason for what he called the government’s violations. The military judge noted “[b]y leaving discovery to the whims of interested parties or law enforcement agencies, refusing to make a key eyewitness available for an interview, and failing to respond to the most basic discovery requests such as the request to preserve evidence or determine the existence of mental health records, unless ordered to do so by the [military judge], the obligations of R.C.M. 701 have been systemically ignored.”

The military judge, noting the length of the delay, analyzed the case to determine whether a constitutional speedy trial violation occurred. Because the accused had not raised a speedy trial claim, the military judge found no such violation.

However, the military judge determined that “based solely on the nature, magnitude, and consistencey of the discovery violations in this case, this is the very rare case where dismissal is an appropriate remedy. As dismissal without prejudice only gives the [g]overnment the opportunity to reset and perfect its case, and offers no remedy for the material prejudice and denial of due process already inflicted upon the [a]ccused, the only appropriate remedy left in this case is dismissal with prejudice. Being able to reach this conclusion based on the violations of R.C.M. 701 alone, the Court declines to make a finding of prosecutorial misconduct in this case.”

Slip op. at 11. Senior Judge Tozzi’s analysis of this ruling includes a general discussion of the Government’s discovery obligations in the military justice system. But as applies to the “box” of evidence kept by Mrs. MS, Senior Judge Tozzi employs a two-step analysis:

First, we must determine whether the trial counsel disclosed the evidence in the government’s possession relating to the “box.” Second, we must determine whether the trial counsel had any further duty to investigate a “box” held by a cooperating witness in order to comply with R.C.M. 701(a)(6).

Slip op. at 16-17. On the first point, the CCA concludes that the trial counsel did in fact produce all of evidence that was actually in the control of the Government. On the second point, Senior Judge Tozzi explains:

[W]e must analyze the second question: To what extent did the trial counsel have a duty to seek out exculpatory information in a “box” possessed by a cooperating witness? We conclude that the military judge relied on an erroneous view of the law. The trial counsel disclosed what he knew, as required under R.C.M. 701(a)(6). Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.

Slip op. at 17 (emphasis added). Citing numerous federal district and circuit court decisions, Senior Judge Tozzi makes a crucial distinction between Government agents and cooperating witnesses:

[T]he record does not reflect, and the military judge did not find, that Mrs. MS or MS were effectively government agents. In our view, nothing in this case gives us reason to merge the prosecuting sovereign United States and a cooperating witness and treat the two as one. Given the facts, MS and Mrs. MS cooperated with the trial counsel, but did not become agents of the trial counsel.

Thus, the “box,” and the evidence within it such as the note documenting the recantation and the emails, were outside the possession and knowledge of the government. The trial counsel did not have a duty to search a “box” belonging to third party cooperating witnesses for exculpatory information. The military judge abused his discretion to the extent that he believed that the trial counsel had such a duty.

Slip op. at 19 (emphases added).

The CCA’s ultimate conclusion is that “the military judge abused his discretion by dismissing the charges and specifications with prejudice,” and that “he clearly misjudged the scope and magnitude of the discovery issues in this case.” Slip op. at  21. The CCA is “left with a definite and firm conviction that dismissal with prejudice is not amongst the reasonable range of remedies for a military judge in this case.” Slip op. at 21. And Senior Judge Tozzi notes that “without a finding of willful ignorance, willful suppression, or other misconduct from the military judge, we cannot conclude that dismissal with prejudice is a reasonable remedy.” Slip op. at 22.

And so the CCA vacates the dismissal and remands the case for further proceedings.

The distinction that the CCA draws between Government agents and cooperating witnesses is a significant one, and I’m not aware of any military precedent that makes this point so clearly. Unfortunately, I think it’s drowned out by the CCA’s brief and somewhat after-the-fact consideration of the issue of willful ignorance on the part of the prosecutor, found in the closing sentences of the opinion:

Here, the military judge did not make a specific finding as to whether trial counsel engaged in willful misconduct. See United States v. Quinn, 537 F. Supp. 2d 99, 110 (D.D.C. 2005) (“the government cannot shield itself from its Brady obligations by willful ignorance or failure to investigate.”). Without a finding of willful ignorance, willful suppression, or other misconduct from the military judge, we cannot conclude that dismissal with prejudice is a reasonable remedy.

Slip op. at 22 (emphasis added). It’s hard not to see this as a textbook case of willful ignorance by the Prosecution in order to avoid making disclosures to the Defense. The military judge’s findings of fact included that:

CPT KJ [the original lead trial counsel -zds] became aware of the “box” of evidence in late February or early March 2013 after he visited MS and Mrs. MS with CPT FC [the assistant trial counsel -zds]. Mrs. MS testified that she referred to this evidence and showed the binder to CPT KJ while in her kitchen. At that point, CPT FC was in the basement entertaining MS. Captain KJ cautioned Mrs. MS that any evidence that she provided to him would have to be turned over to the defense, so if she had questions she should “ask ahead of time.” Mrs. MS testified that she did not take that statement to mean that she should not provide the evidence to the government, but that she should be aware it would be disclosed to the defense.

Slip op. at 3 (emphasis added). Notably, the CCA’s opinion reveals that Captain KJ developed a rather close relationship with the alleged victim and her mother:

Captain KJ and his wife went to dinner with Mrs. MS and MS in December 2013 in El Paso, Texas, and Mrs. MS is “pretty sure” she paid for the dinner, although CPT KJ testified that he and his wife took Mrs. MS and MS to dinner. Mrs. MS gave a gift to CPT KJ to celebrate the pending birth of a child, but CPT KJ was unaware of the gift, due to his deployment, until after it was provided.

Slip op. at 7. Additionally, “throughout 2013, [Mrs. MS] developed a strong rapport with CPT KJ [the trial counsel]. Captain FC [the assistant trial counsel] requested that CPT KJ provide her feedback on his progress with the case relative to discussions with Mrs. MS, but was repeatedly rebuffed to the point where she brought her concerns to both the former and current chief of military justice.” Slip op. at 8.

The opinion also reveals that Captain KJ had rather strong feelings about the case:

Captain KJ acknowledged that he made a statement in front of the Chief of Client Services in the presence of civilian defense counsel that the civilian defense counsel was “defending rapists” and had sent an email to the civilian defense counsel that, in effect, stated that she was “defending the guilty.”

Slip op. at 6. And the CCA’s opinion reveals that Captain KJ’s stance on discovery was a festering issue in the case during the second half of 2013. The military judge granted two defense continuances due to “incomplete discovery,” slip op. at 5 and 6, and “in a written ruling on 17 September 2013, the military judge cautioned the government that their decision to ‘take a hard stand on discovery . . . invites disaster at trial.'” Slip op. at 6.

Sometime in late-2013 or early-2014, Captain KJ was replaced as trial counsel by Captain BH. The disclosure of the “box” of evidence maintained by Mrs. MS appears to have been made after Captain KJ was replaced by Captain BH.

These facts beg a lot of questions about Captain KJ’s actions as lead trial counsel in this case. For instance: why didn’t he review the box of materials when he learned about it in early 2013? Why didn’t he disclose its existence to the Defense? Did he develop an improperly-personal relationship with the alleged victim and her mother? And, what role (if any) did supervisors play in Captain KJ’s handling of the discovery issues?

It seems like the military judge was trying to shield Captain KJ from some of these questions in his resolution of the Defense motion, by avoiding making any direct finding on the issue of prosecutorial misconduct. But the CCA’s decision puts Captain KJ’s actions as trial counsel – and his objectivity – in the spotlight.

I think it’s rather easy for a lawyer to get caught up in the facts of a case, and particularly so in a case involving emotionally-charged issues such as the child sexual assault allegation in this case. But whatever happens next, I think the facts of this case are a good reminder to military prosecutors of the need to stay objective.

10 Responses to “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.””

  1. stewie says:

    I don’t know enough about the case to know if it’s the right result. I’d guess that as a general rule, no the government does not have to go seek out all witnesses to probe for exculpatory evidence as the court states. However, that doesn’t seem to be what would have been required here.  Instead, you have evidence the TC knows about, and knew about for quite awhile before telling anyone about it. That seems to me to be a different scenario then the court seems to be operating under.  Still, dismissal with prejudice is a very severe result, and I can understand, generally, not going to that well  unless there are no other alternatives.
    I find the whole attitude of the TC one that makes me wonder if they went to law school and if they understand the entire American justice system.  It’s one thing for an average person to wonder “how can you defend a person you know is guilty.”  For an attorney to effectively take that tact boggles the mind (although some would say I’m easily boggled).  I too wonder about the role of the supervisors in this case. Did they know about the box? If so, what did they advise? 
    TC get engaged with victims, it happens, it’s natural. I’ve seen it. That’s what a supervisor is supposed to be there for, to gently remind them to stay objective.  Still, I’ve never had a TC who would remotely say something about “defending rapists” like this young man did.  They’ve all, with respect to this young man, been much more mature about it.

  2. JustAnotherADC says:

    Seems to me that there are some inherent weaknesses in the concluding paragraphs of the opinion.  This particular statement is not cited:

    Without a finding of willful ignorance, willful suppression, or other misconduct from the military judge, we cannot conclude that dismissal with prejudice is a reasonable remedy.

    Slip op. at 22. The opinions the court cites seem to imply that deliberate misconduct is “sufficient” for a drastic remedy, but not “necessary.” 

  3. Dew_Process says:

    This case is a travesty regardless of which angle you look at it from.  Zach (as usual) did a masterful job of summarizing the facts and pointing out the issues. Indeed, there are so many issues buried in this case that it could easily have doubled his “word count.” The “box” of course was a major problem in this case, but so was a plastic “banana,” which I’d like to focus on because ACCA’s holding simply ignores the significance of the “banana” evidence – but which clearly concerned the military judge.
    From page 6, slip opn.:

    When the defense requested the banana, the government responded that the defense was not entitled to “lost evidence.” When the military judge ordered the government to search for the banana, it was located in the Sheriff’s Department’s evidence locker. Ultimately, DNA tests were run on the banana, and that banana contained the DNA of MS and the DNA of an unknown male, but not the accused’s DNA.  [Emphasis added].

    This was not only “favorable” evidence in the context of Brady, it was exculpatory!
    There are some things of import “missing” from this opinion and I don’t know if they were argued or not, either at the trial level or at ACCA.  First, Army Rule of Professional Conduct, 3.8(d):

    [Trial Counsel “shall”]make timely disclosure to the defense of all evidence or information known to the lawyer that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the lawyer, except when the lawyer is relieved of this responsibility by a protective order or regulation . . . . [Emphasis added]

    Here, there’s no question that the original TC “knew” of the “box” and the “banana,” yet deliberately and consciously did not disclose even the existence of such until forced to do so by the Military Judge. But ACCA’s opinion here simply eviscerates RPC 3.8(d).
    In that regard, it also ignores the ABA Formal Ethics Opn. 09-454, Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense (2009).  For a good analysis of this Opinion see the Article: HERE  And for a more in-depth analysis, read the article HERE.
    Furthermore, ACCA’s opinion also ignores the ABA Standards for Criminal Justice, The Prosecution Function, (3 ed.), and in particular, Prosecution  Standard 3-3.11(a), Disclosure of Evidence by the Prosecutor,  which states:

    (a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.

    And, had the defense been timely advised of the “box,” banana, etc., they could have sought a subpoena duces tecum for the “physical evidence” under Art. 47(a)(3), UCMJ.  But, unless one is clairvoyant, not much a DC can do when the intentionally don’t tell you.
    Finally, ACCA apparently does not appreciate the “duty” to investigate evidence outside law enforcement.  In Pennsylvania v. Richie, 480 U.S. 39 (1987), the Court held that a prosecutor did indeed have a duty to review an outside agencies files for Brady material.  The Court was quite clear in Kyles v. Whitley, 514 US 419, 437 (1995), that the individual prosecutor does indeed have such a duty:

    But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.  [Emphasis added]

    Yes, I understand ACCA’s parsing of this by arguing that the mother wasn’t a governmental “actor,” but such a strained approach when the TC knew of the “box,” knew that she was passing out limited information to the government from the “box,” is basically taking the “head in the sand” approach to Brady versus focusing on “doing justice.”  For a good analysis of this, see this ARTICLE.
    The Courts — except ACCA (cf. its decision in Behenna) — have recognized the distinctions between the constitutional duty to disclose under Brady, and the ethical duty of a prosecutor under the relevant Rules of Professional Conduct, which is quoted above. For an thorough analysis of this, see the amicus curiae brief authored by Prof. Nancy Gertner [a retired US District Court Judge] available HERE.

  4. Phil Cave says:

    Ah, the ostrich defense

  5. Tami (aka Princess Leia) says:

    Although I agree with the proposition that a Government witness is not automatically part of “the Government” for discovery purposes, what about the TC’s deliberate ignorance of “the box.”  I would think deliberate ignorance would count as willfulness.  I’m very disturbed by a TC who deliberately tells victim’s mom “no don’t give it to me
    .  It’s ok to show it ro me, but don’t give it to me.”  I hope this goes up on interlocutory appeal to CAAF (as opposed to the regular process).

  6. RKincaid3 (RK3PO) says:

    What? You mean there is more to effectuating “justice” than winning? Sigh…yet another fine example of bad precedent that sends the exact wrong message to practitioners everywhere.
    But “what the hey!” It is a pedophile whom we are discussing after all.  Certainly none can or should complain about what WE do with or to THEM, right?

  7. Defense Hack says:

    I’m convinced it’s only going to get worse. The Special Victim’s Counsel can now work with the alleged victim to hide exculpatory information under the guise of it being privileged information. Just wait. It’s gonna happen.

  8. Grey says:

    There really should be a duty for the prosecutor to disclose evidence that he is aware of (albeit out of government possession) so as to give the defense the opportunity to request a subpoena.
    The defense doesn’t have the ability to compel witnesses to testify at an Art. 32 hearing or at depositions, so it doesn’t have the tools necessary to learn of this sort of evidence in advance of trial.  If you don’t know it exists, you don’t know to request a subpoena for its production. 
    I think the Art. 32 hearings had a lot of promise when there was talk about giving the 32 officer the power to subpoena civilian witnesses to testify.  It offered many of the advantages of civil depositions without some of the major drawbacks.  Advantages: defense can ask questions that would lead to follow on discovery (e.g. “have you ever written any notes about what happened that night?”) that would be too late at trial.  By having a neutral 3rd party supervise the 32 it kept the process largely on schedule and avoided the unpleasantness that might otherwise happen when there are no adults in the room (Google “Texas Deposition” to see an example).  Curtailing the 32 and limiting the prosecution’s discovery obligation is a one-two punch.  The government is not obligated to disclose the evidence out of its possession and the defense is not permitted to engage in a meaningful search for the evidence.

  9. Dew_Process says:

    @ Defense Hack – I agree with you, albeit for probably a different reason.  The cases that hold that the accused’s constitutional rights triumph an evidentiary privilege, e.g., Davis v. Alaska, 415 US 308 (1974)[juvenile records]; Pennsylvania v. Richie, 480 US 39 (1987)[child protective records], etc., will be either ignored or distinguished on the basis that sexual assault “victims” are in some illusory special category.
    In preparing for a CLE I’m speaking at, I encountered the following:  The Sexual Assault Nurse Examiner: Should the Scope of the Physician-Patient Privilege Extend That Far?  Available HERE.  But see, The Constitutional Right to Produce Evidence, available HERE.
    The practical reality – as many here have noted as this debate goes on – is that the SVC program created a “monster” which will (and already has) generate considerable, needless litigation, wrongful convictions and even more bizarre Brady / Kyles / ethical issues.  For example, in Stellato, what if the SVC advised “mom” not to voluntarily turn over the “box” to the government because under Article 46, the defense would also get access to it?  One doesn’t need a crystal ball to realize that Mom’s unlikely to turn over the box.  But, does that then raise another issue, is the SVC now suborning the offense of Obstruction of Justice?  Who knows.
    Must defense counsel now also serve Discovery Requests on the SVC to ensure proper preservation and in camera reviews when a TC legitimately does not know of or isn’t aware of information not disclosed to the government – or is disclosure to the SVC enough to fall within the parameters of the “government?”  Some of us have been around long enough to remember MJ’s saying, “Counsel, we’re not going to have a trial within a trial in this case,” yet we seem to be going full circle in that regard!
    Beam me up, Scotty!

  10. k fischer says:

    The way I read this opinion, I imagine that Trial Counsel would be encouraged to not seek evidence and remain willfully ignorant of potential exculpatory information in the future.  I cannot imagine how that is being a good minister of justice.  I really hope that CPT KJ is no longer responsible for prosecuting Servicemembers.  Between the advice given to Mrs. MS that anything given to him will have to be disclosed to the defense, the statements to the Defense Counsel that she is representing a rapist, and the trickling of discovery to the defense, I would as a member of the general public have serious misgivings of the fairness of the process.
    Once again, kudos to the Military Judge who IMO did the right thing.  If the Defense had equal subpeona powers as the Trial Counsel and didn’t subpeona these records, then I might agree with this opinion.  But, can’t the TC subpeona evidence?  If there are specific documents that are relevant to the case and requested by the Defense Counsel, then shouldn’t the TC have the duty to subpeona these documents?
    If I were the defense counsel in this case, I would request that the military judge reconsider the motion to dismiss with prejudice for prosecutorial misconduct, and maybe the MJ would outline his reasoning for that basis and dismiss the case again for misconduct.  It strongly appears that there was a willful failure by the TC to obtain potentially exculpatory evidence.  I would hate that for the TC, but my interest and loyalties would lay with my client who is being prejudiced by the Government’s actions.
    I have seen time and again CID failing to obtain potentially exculpatory evidence.  I will chalk that up to their pure ignorance, or perhaps laziness.  I can’t imagine a person who has graduated from law school and passed his or her state’s bar is ignorant.
    I also find it interesting that CPT CF was let off the hook because she wasn’t aware of the discovery issues and had problems getting a return phone call from KJ.  This case lingered for a long time with a couple of continuances for discovery issues.  I assume that the SVC was senior to CPT KJ, or at least had more experience in sexual assault prosecutions.  She was at the house during the home visit to Morgantown, WV, so why wasn’t she monitoring the discovery and reeling this TC in?  Why didn’t she pay him an office call?  They both can travel from Ft. Bliss to Morganfreakingtown WV, but she can’t go to Bliss and pay KJ an office call personally?  Moreover, is KJ and CF’s conduct in this court-martial indicative of a systemic problem within the Army SVP program and the Army’s prosecution of sexual assault allegations in general?