Gonzalez & Waddington – Attorneys at Law

CALL NOW 1-800-921-8607

Brady Violation in a Military Trial

Case examples of discovery violations and their remedies in a court-martial

United States v. Webb , 66 M.J. 89 (C.A.A.F. 2008). Prior to authentication of the record of trial, the defense moved for a new trial based upon the government’s failure to disclose impeachment evidence of one of the government’s key witnesses. The judge granted a new trial and on appeal, the government argued that Article 73 and  RCM 1210  only allowed new trial petitions after the CA’s action. The CAAF agreed that Article 73 does not allow a military judge to order a new trial – but Article 39(a) does. The CAAF declared unequivocally that military judges have authority under Article 39(a) to convene post-trial sessions to consider newly discovered evidence and to take whatever remedial action the military judge finds appropriate (to include a new trial).

United States v. Meghdadi , 60 M.J. 438 (C.A.A.F. 2005). After trial, appellant requested an Article 39(a) session seeking to inquiry into alleged witness misconduct, or, alternatively, a mistrial or a new trial. A different military judge than who presided over the trial heard evidence at the post-trial session and denied the motion. The defense based its motion on allegations that the primary CID investigator lied at trial when he testified that: he had not promised the informant who testified against the appellant that the informant would not go to jail if he helped CID; that he had not told the informant that (Lawfare ) CID would assist him with his case if the informant went to work for CID; and, that he had not met with the informant after CID terminated the informant as a registered source. An audio tape surreptitiously recorded by the informant in a conversation with the agent shed light on each of these allegations. The CAAF noted that the

MJ failed to recognize the purpose of the requested inquiry, which was to examine the request for a mistrial or a new trial, rather than to establish a basis for correction or discipline of the witnesses themselves. The CAAF also criticized the findings made by the MJ. With respect to the evidentiary value of the tape, which the MJ discounted, the CAAF held that the appellant “firmly established” the potential impeachment value of the tape. The CAAF noted that the MJ denied himself the opportunity for meaningful assessment of whether the investigator’s trial testimony was perjured, and if so, whether the effect of the perjury substantially contributed to the sentence.

United States v. Humpherys , 57 M.J. 83 (C.A.A.F. 2002). Post-trial 39(a) sessionheld by MJ to question two panel members about a rater-ratee relationship that they failed to disclose during voir dire . After making extensive findings of facts and conclusions of law, the MJ indicated he would not have granted a challenge for cause based on the relationship had it been disclosed. Petition for a new trial denied. The CAAF noted the following regarding the MJ’s post-trial responsibilities: The post-trial process empowers the military judge to investigate and resolve allegations, such as those in this case, by interviewing the challenged panel members. It allows the judge to accomplish this task while the details of trial are still fresh in the minds of all participants. The judge is able to assess firsthand the demeanor of the panel members as they respond to questioning from the bench and counsel. Id . at 96.

United States v. Jones , 46 M.J. 815 (N-M. Ct. Crim. App. 1997). In mixed-plea case,MJ failed to announce findings of guilty of offenses to which accused had pled guilty, and as to which MJ had conducted providence inquiry. Upon realizing failure to enter findings, MJ convened post-trial Article 39(a) hearing and entered findings consistent with pleas of accused. Though technically a violation of RCM 922(a), MJ commended for using post-trial session to remedy oversight.

United States v. Perkins , 56 M.J. 825 (A. Ct. Crim. App. 2001). MJ’s failure toproperly announce guilty finding as to Spec 3 of Charge II (MJ announced Guilty to Spec 3 of Charge III) did not require court to set aside appellant’s conviction of Specification 3 of Charge II when it was apparent from the record that the MJ merely misspoke and appellant had actually plead guilty to Specification 3 of Charge II. The court notes that a proceeding in revision UP of RCM 1102would have been an appropriate course of action had the MJ or SJA caught the mistake.

United States v. Kulathungam , 54 M.J. 386 (C.A.A.F. 2001). Proceeding in revisionto correct erroneous omission of findings from the record and to formally announce findings was appropriate. Omission was the only procedural deviation by the MJ during the court-martial. Note: upon discovery of the omission, the TC and court reporter “inserted” the findings in the record. DC was aware of the omission during trial but for tactical reasons chose to remain silent. On appeal, the CAAF advised counsel, in the future, to seek the advice of the MJ or a more senior counsel to avoid the “train wreck” that occurred in that case.

United States v. Mayfield , 45 M.J. 176 (C.A.A.F. 1996). Accused’s written judgealone (JA) request never signed by parties and made part of the record. Additionally, no timely oral request for judge alone was made on the record. Before authentication, MJ realized omission and called a post-trial Article 39(a), during which accused acknowledged he had made request in writing and that JA trial had been his intent all along. The CAAF reversed the NMCCA, which had found the failure to formally request JA to be a jurisdictional error.

United States v. Avery , No. 9500062 (A. Ct. Crim. App. May 17, 1996)(unpublished). Post-trial 39(a) session held to inquire into allegations that a sergeant major (SGM) slept through part of the trial. Testimony of MAJ H, panel president, about “SGM A’s participation during deliberations . . . was relevant and admissible.” MJ “properly stopped appellant’s trial defense counsel from asking MAJ H about any opinions expressed by SGM A during deliberations.”

United States v. Gleason , 43 M.J. 69 (C.A.A.F. 1995). Proceeding in revision isinappropriate to correct erroneous sentencing instruction. Proper procedure is a rehearing. Article 63 prohibits members who sat in original proceeding from sitting on a rehearing. No such prohibition exists for a proceeding in revision. There is no problem in having the same members for a proceeding in revision. See also United States v. Roman , 46 C.M.R 78, 81 (C.M.A. 1972). 10. United States v. Crowell , 21 M.J. 760 (N.M.C.M.R. 1985). Post-trial 39(a) appropriate procedure to repeat proceedings to reconstruct portions of a record of trial resulting from loss of recordings. 11. United States v. Jordan , 32 M.J. 672 (A.F.C.M.R. 1991). MJ erred in entering findings of guilty on two specifications. After authentication he noticed error and notified SJA, who advised CA to only approve proper findings, but to approve sentence as adjudged. “If the error were detected before authentication, the better method of handling this type of error would have been for the military judge to direct a post-trial session under RCM 1102(d).” Such a post-trial session could have been used to reconsider the erroneous findings of guilty and re-determine the sentence. See RCM 1102(b), (c), and (e). As requested by the trial defense counsel, the CA could have also ordered a rehearing on sentence and avoided this issue. See RCM 1107(e)(1).” Id . at 673-4 n.1. 12. United States v. Wallace , 28 M.J. 640 (A.F.C.M.R. 1989). MJ became aware of possible extraneous information received by the panel on the “ease of converting a BCD to a general discharge.” MJ had an obligation to sua sponte convene a post-trial Article 39(a) session to assess facts and determine any possible prejudice. Findings affirmed; sentence set aside and rehearing authorized. 13. United States v. Wilson , 27 M.J. 555 (C.M.A. 1988). TC failed to administer oath to two enlisted panel members. MJ held a proceeding in revision to correct the “substantial omission, to wit: a sentence and a sentencing proceeding.” Ministerial act of swearing court members is essential to legal efficacy of proceedings but not a matter affecting jurisdiction. 14. United States v. Baker , 32 M.J. 290 (C.M.A. 1991). MJ held a post-trial Article 39(a) session to correct the omission in sentence announcement (the president of the panel failed to announce the adjudged DD). Held – Error; presents the appearance of UCI. See also United States v. Dodd , 46 M.J. 864 (A. Ct. Crim. App. 1997) (holding that it was error for court to re-convene two minutes after adjourned to state they had also adjudged a bad-conduct discharge). 15. United States v. Jones , 34 M.J. 270 (C.M.A. 1992). MJ held proceeding in revision two months after adjournment to correct “erroneous announcement of sentence” (failure to announce confinement). Held – Error. “Article 69(e)(2)(c) disallows such corrective action, to assure the integrity of the military justice system.” Id. at 271. 16. United States v. Jackson , 34 M.J. 1145 (A.C.M.R. 1992). MJ held post-trial Article 39(a) session one month after adjournment, declared mistrial as to sentence based on procedural error (court members used improper voting procedures), and ordered new session with same members. Held – post-trial session was actually a proceeding in revision, and since the error was substantive, was inappropriate; even if not error, inappropriate to use same sentencing authority. See also United States v. Roman , 46

M.R 78, 81 (C.M.A. 1972).17. United States v. Miller , 47 M.J. 352 (C.A.A.F. 1997). MJ abused his discretion when he denied the accused’s request for delay of a post-trial Article 39(a) session in order to obtain civilian defense counsel. MJ was more concerned with expediency and convenience to government than protecting rights of the accused. 18. United States v. Carr , 18 M.J. 297 (C.M.A. 1984). Unlawful command control for president to order a re-vote after a finding of not guilty had been reached. MJ should build a factual record at a post-trial Article 39(a) session. 19. United States v. Steck , 10 M.J. 412 (C.M.A. 1981). Proceeding in revision, directed by CA, appropriate to conduct a more thorough inquiry into the terms of the pretrial agreement and accused’s understanding thereof. 20. United States v. LePage , 59 M.J. 659 (N-M. Ct. Crim. App. 2003). MJ erroneously admitted NJP record and considered evidence in arriving at a punitive discharge. At a post-trial Article 39(a) session, the MJ held that he erred and that the error prejudiced appellant. He further held, erroneously, that he lacked authority to correct the defect, citing to RCM 1009, which addresses reconsideration of sentences. Held – MJ could have corrected the error under RCM 1102 at a post-trial Article 39(a) session since the erroneous admission of the evidence “substantially affect[ed] the sufficiency of the sentence.” 21. United States v. Lofton , 69 M.J. 386 (C.A.A.F. 2011). A convening authority abused his discretion in denying a request for a post-trial Article 39(a) session after an email surfaced from an Air Force victim advocate claiming witnesses were texting each other the contents of testimony from the courtroom. However, the court addressed the testimony of the witnesses and found that there was no “basis for concluding that shaping of testimony or collusion occurred,” and that the appellant was not prejudiced as a result. 22. MJ may, any time until authentication, “reconsider any ruling other than one amounting to a finding of not guilty.” RCM 905(f).

Skip to content