Military Commission Judge Penalizes Prosecution's Discovery Practices in United States v. Khan

7/15/2020

On Monday, COL Douglas Watkins, the military judge presiding in the case of United States v. Khan ruled that the prosecution had systemically failed to meet "the spirit or letter of Article 46, 10 U.S.C. §949j, R.M.C. 701, or accepted standard practice in the military, it has created needless litigation and potentially delayed the resolution of this Commission." As a sanction, Judge Watkins gave the defendant, Majid Khan, a year of credit against the sentence the military commission will ultimately impose.

Khan pled guilty in 2012 as part of a plea agreement in which he agreed to testify at the September 11th trial. As the September 11th case has dragged on over the intervening years, Khan's sentencing has been routinely postponed.

The present controversy arose after the Secretary of Defense designated RADM (Ret.) Christian Reismeier as the military commission's convening authority in 2019. Reismeier had a long professional history of supporting the Office of the Chief Prosecutor and recused himself from two military commission cases on which he had played a public role when he took the job. Khan sought discovery into whether Reismeier's past conduct should also disqualify him from continuing to exercise convening authority in Khan's case and COL Watkins ordered the prosecution to produce that discovery back in September 2019.

In a ruling issued Monday, Watkins chastised the prosecution in the starkest terms possible. "The Government's sovereign obligation," he wrote, "in maintaining this prosecution is to ensure not a particular outcome, but rather that justice shall be done. Gamesmanship, second-guessing, and replacing the statutory language with the Government’s unique interpretation of the discovery rules is unacceptable and will not be tolerated by this Commission." After reciting a series of particular discovery abuses caused by what Watkins called the prosecution's "faulty and unreasonably restrictive" view of its Brady obligations, he found "the Government’s discovery practice worthy of sanction."

The most obvious sanction would have been to disqualify RADM Reismeier, since it was discovery in support of a motion to disqualify that the prosecution had improperly withheld. That remedy, however, was off the table because the Secretary had rescinded Reismeier's convening authority designation back in April. Watkins nevertheless concluded that a sanction was still needed to remedy the prejudice to Khan and to sanction the prosecution's misconduct. So, Watkins granted Khan a year of confinement credit.

Given that eight years have elapsed since Khan's guilty plea, the year of confinement credit is modest in practical terms. But the ruling is likely to have greater significance in the other military commission cases, particularly United States v. Mohammed, et al., and United States v. Al-Nashiri, which are both capital cases.

The blow up in Khan's case has pulled back the curtain on discovery practices that appear to be widespread within the Office of the Chief Prosecutor. If the prosecution took an "faulty and unreasonably restrictive" view of its discovery obligations with respect to an issue as ancillary as the potential biases of a convening authority, are these same standards being applied to the government's discovery obligations concerning torture, intelligence records, and the myriad other forms of Brady evidence that will be at the heart of these other cases?

Michel Paradis

LOAC Editor

Brenner M. Fissell

7/15/2020 03:22:03 pm

Now I reprise my prior comment: will the legal ethics system in place deal with these prosecutors' professional misconduct? Btw, a Brady violation is a professional responsibility violation. See ABA Op. 09-454 (2009); see also Kyles v. Whitley, 514 U.S. 419 (1995).

Phil Cave link

7/16/2020 09:03:51 am

In Cone v. Bell, 556 U.S. 449 (2009), the United States Supreme Court explained: Although the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations. See Kyles, 514 U.S. at 437.

(1) Air Force Rule 3.8(d), AFI 51-110: Rules of Prof. Conduct.

(2) Army Rule 3.8.d., AR 27-26: Rules of Prof. Conduct.

(3) Coast Guard, COMDTINST M5800.1, Coast Guard Legal Professional Responsibility Program.

(4) Navy-Marine Corps Rule 3.8.a.(4), JAGINST 5803.1E: Prof. Conduct of Attorneys.

See also, ABA Formal Opinion 09-454; Joy, Peter A., and McMunigal, Kevin C., ABA Explains Prosecutor's Ethical Disclosure Duty. 24(4) CRIM. J. (2010). The opinion also addresses the timing of disclosure. The disclosure must be made early enough so that defense counsel my use the evidence and information effectively. Reasoning that defense counsel can use favorable evidence and information most effectively the sooner it is received, Rule 3.8(d) requires disclosure of such evidence and information “as soon a
s reasonably practical” once it is known to the prosecutor.

Don Rehkopf

7/16/2020 02:32:25 pm

I have lectured on this frequently and it is an on-going problem in the military, Art. 46, notwithstanding. There are two types or classes of Brady violations: (1) intentional, as the Khan case seems to indicate; and (2) neglectful. The first is surely prosecutorial misconduct; the second might be in some situations.

The root probem - aside from the "win at any cost" mentality - is imho, two-fold. First, young judge advocates simply are not taught, both in the criminal procedure context and from an ethical perspective, just what "Brady material" is. For example, one routinely gets replies from TC's stating words to the effect, "I am aware of my Brady obligations and will comply. At this juncture I am aware of no exculpatory evidence in the possession of the government."

That tells me right from the git-go that they do NOT know or understand Brady. If one actually reads the decision in Brady, one is shocked to learn that the majority opinion never refers to "exxculpatory" evidence, but rather uses the phrase "favorable evidence." Of course, all exculpatory evidence is favorable, but not all favorable evidence is exculpatory, so how one views the definition of Brady material [and in my discovery demands, I say, "By Brady material, I am referring to . . . ."

Also, too many TC and too few DC know or use Kyles as Phil notes above. Kyles - in addition to other things - holds that there is a duty of a specific prosecutor, when expressly asked, to go LOOK for the evidence in the OSI/CID/NCIS files or where ever.

The second problem - which compounds the first - is that MJ's don't hold the government's feet to the fire nor do they rarely ever impose sanctions, Khan being a notable exception. Years ago, there was a MJ who in response to my Motion to Compel Production and the Government's "We don't have to, yet" response, told the TC, "Unless you are asserting a bona fide privilege, if I ever get another Motion to Compel Brady Discovery, I will hold you in contempt of court. And he did, about a month later in another case (not mine).

Lastly, one additional comment regarding the ethical issues (which DC should always assert separately in their requests), is that R. 3.8, unlike Brady, does not have a "materiality" component, thus making it broader in scope than Brady.

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Military Commission Judge Penalizes Prosecution's Discovery Practices in United States v. Khan

Michel Paradis

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