The absence of bad faith does not win application of a good faith exception in United States v. Muwwakkil, No. 15-0112/AR
CAAF decided the certified interlocutory Army case of United States v. Muwwakkil, 74 M.J. 187, No. 15-0112/AR (CAAFlog case page) (link to slip op.), on Thursday, May 28, 2015. The court unanimously affirms the trial-stage ruling by a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. CAAF rejects both issues certified by the Judge Advocate General of the Army, affirming the decision of the Army CCA.
Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs in the result but writes separately to distinguish the Jencks Act (18 U.S.C. § 3500) from Rule for Courts-Martial 914.
Production of pre-trial statements by a witness is required by the Jencks Act, 18 U.S.C. § 3500, and the corollary Rule for Courts-Marital (RCM) 914. In this case, the Government called the alleged victim to testify at trial, but then produced only part of the recording of her pretrial testimony. The majority of the recording was lost by the Government in what the military judge determined was not an intentional act but “was certainly negligent and may amount to gross negligence.” 73 M.J. 859, 861 (A. Ct. Crim. App. Aug. 26, 2014) (quoting record).
Specifically, of approximately 2 hours and 15 minutes of testimony by the alleged victim at the Article 32 pretrial investigation, only approximately 52 minutes was preserved. 73 M.J. at 861. Considering this, the military judge concluded that “the defense counsel does not have what he needs to adequately prepare for cross-examination of [the alleged victim],” and the judge felt that the only adequate remedy was to strike the entire testimony of the alleged victim. Id.
The Government promptly appealed under Article 62. The Army CCA denied that appeal and affirmed the judge’s ruling. The Judge Advocate General of the Army then certified two issues to CAAF:
I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.
II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).
Rejecting the Government’s appeal and affirming the decision of the Army CCA, Judge Ohlson unravels the Government’s various arguments – that federal Jencks Act precedent doesn’t apply to courts-martial, that this is actually a discovery issue, that the accused should have litigated this issue pretrial rather than waiting until after the alleged victim testified, that the recording of the alleged victim’s testimony during the Article 32 pretrial investigation is not a statement, that the Government can not be required to produce something that is lost, and that the judge was required to find that the Government acted in bad faith prior to imposing the remedy of striking the testimony of the alleged victim – and CAAF concludes that the “military judge did not err or otherwise abuse her discretion in applying the provisions of the Jencks Act and R.C.M. 914 to the instant case.” Slip op. at 18.