United States v. Thompson

8/11/2021

Thompson gives leeway to military law enforcement to not gather certain statements for tactical reasons.

In Thompson, the underage victim had trouble remembering all of her interactions with the accused, so she wrote them down on a timeline. The interviewing CID agent deliberately did not gather this writing. The victim eventually lost it. After her trial testimony, defense counsel moved to strike under R.C.M. 914 because the government could not produce the timeline. The trial judge denied the motion, as did the ACCA.

R.C.M. 914 implements the Jencks Act, 18 U.S.C. § 3500, requiring that, upon motion, a pertinent statement of a witness that is in the government's possession be disclosed after his or her testimony.

Thompson argued to C.A.A.F. that the government constructively possessed the statement because CID had access to it and "consciously avoided collecting it." C.A.A.F. had not previously considered this constructive possession argument. The Court was unconvinced, ruling that there was no R.C.M. 914 violation because the written statement was never in the possession of the United States.

Chief Judge Ohlson concurred in the result because the statement was not lost in bad faith. But he disagreed that the statement was not in the government's possession since it had been offered to government agents and pertained to the witnesses' testimony.  See generally United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015); United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015).

Chief Judge Ohlson's "grave concern" is that the majority approach

will incentivize government agents "to avoid the consequences of R.C.M. 914’s clear language and intent simply by [purposely] failing to take adequate steps to preserve statements." Muwwakkil, 74 MJ at 192. As stated in Appellant’s brief, a holding such as the majority’s will "encourage law enforcement personnel to intentionally avoid collecting relevant evidence for fear it might not fit the government’s theory of the case and [then] they [will] have to disclose [any exculpatory] evidence to the defense."

Frank Rosenblatt

Donald G Rehkopf, Jr.

8/11/2021 12:18:28 pm

Does the CID not have a duty to fully and fairly investigate; do they not have a duty to gather relevant material that in all likelihood possesses evidentiary value; and why does this not - under these circumstances - rise to the level of Obstructing Justice under Art. 131b?

And what about spoliation of evidence? Or "Equal Access" under Art. 46? Are the Briefs available on-line? That may help to explain some of these things.

Jamar Green

8/11/2021 01:41:08 pm

RCM 914 is found under Chapter 9, Trial Proceedings and the text of the rule identifies the timing as “on direct examination.” The rules of statutory construction indicate that possession must be during this period whether constructive or actual. Thus, what the CID agents could have obtained prior to this moment—trial proceedings and direct examination of a witness—should not be implicated by this rule.

I agree with the majority’s decision.

8/12/2021 10:15:43 am

Coming from a career prosecutor and current VLC, your response is understandable -- to an extent. The issue was/is NOT "timing," but rather one of Due Process. Your response suggests, if not advocates, that prosecutors have no constitutional or ethical duties as "ministers of justice" to ensure fundamental fairness, i.e., that criminal investigations be conducted fully and fairly, not just to "build a case" against someone their tunnel vision suggests is the guilty culprit.

You may have overlooked the fact that the complainant, DS, was at least 16 or 17 years old at the time her interlude with the Accused began and was 19 or 20 when the FBI first opened its investigation. CID took over the investigation a year later, making her now, 20 or 21, and the opinions do not note the date of the court-martial.

That is why I wondered if the CAAF Briefs were available - to see whether or not other evidentiary objections were perhaps made below or on appeal. What strikes me as odd is that neither the majority or Judge Ohlson's concurrence cited to the obvious case, Youngblood v. Arizona, 488 U.S. 51 (1988).

The case - absent more - has, in reality, nothing to do with RCM 914. "Footnote 4," of Judge Ohlson's concurrence is the takeaway from the case: "Defense counsel also had access to the calendar, cross-examining DS on it, and could have gained access to the Facebook photographs but never requested them."

Fundamentally, the case had little to do with the Jenck's Act or RCM 914, but Appellate Defense may have been boxed into that corner based upon how the matter/objections were framed at trial. As experienced practitioners know, "you go with what you got!"

Philip D. Cave link

8/14/2021 08:17:48 am

CAAF briefs are available in this case and any case when there is oral argument.

It's a little harder to find nowadays because the hearings calendar (and archive) don't tell you which case is which.

8/14/2021 08:23:22 am

https://www.armfor.uscourts.gov/newcaaf/briefs/2020Term/Thompson210111AppelleeBrief.pdf

https://www.armfor.uscourts.gov/newcaaf/briefs/2020Term/Thompson210111AppellantReplyBrief.pdf

https://www.armfor.uscourts.gov/newcaaf/briefs/2020Term/Thompson210111AppellantBrief.pdf

8/14/2021 03:08:03 pm

Thanks Phil. And our friends up North in the Canadian Forces are dealing with a similar issue . . . . lost (allegedly) spiked "cupcake wrappers!

"Military Judge Cmdr. Sandra Sukstorf said while the military police could have done a better investigation, there was no indication of negligence. She said she could not conclude that even if some cupcake wrappers were lost, it would demonstrate “a systemic disregard for the prosecution’s obligation to preserve relevant evidence.” She allowed the evidence concerning test results on the wrapper."

https://www.theglobeandmail.com/canada/article-judge-allows-wrapper-as-evidence-in-new-brunswick-cannabis-cupcake/?utm_campaign=sophi-pop&utm_medium=post&utm_source=facebook&fbclid=IwAR1FMpRO5Uck2F3HRoWgU1HkhhcOgXSEZO5I_KnBG-nBaYUvJWel-t7vK_I

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United States v. Thompson

Frank Rosenblatt

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