Prof. Colin Miller alerts us to the Sixth Circuit's decision in McNeill v. Bagley.
So, in a murder/shooting case with no physical/forensic evidence, does the State violate Brady by failing to disclose (1) that the State's key eyewitness, who had a longstanding relationship with the defendant, told the police on the night of the murder that the defendant was NOT the shooter; and (2) a police report regarding an alternate suspect?
In a 2-1 decision, the appeals court tells us that the, admittedly withheld, information was not material under Brady.
McNeill Jr. was convicted and sentenced to death in Ohio state court for the aggravated murder of Blake Fulton. McNeill appeals the district court’s denial of his petition for habeas corpus, in which he argued that the prosecution in his case failed to turn over material under Brady v. Maryland and created a false impression in violation of Napue v. Illinois. The alleged Brady material included two police reports, one summarizing an interview with the prosecution’s primary witness, Robert Rushinsky, who initially failed to—but ultimately did successfully—identify McNeill as the culprit, and the other detailing a potential suspect who was quickly dismissed as a suspect by the police. It also included three audio recordings, one of the same Rushinsky interview addressed in the report, a second Rushinsky interview, and a third interview with a potential alibi witness, Marko Roseboro. The warden concedes that these materials were withheld (with the exception of the audio recording of the first Rushinsky interview, which was actually played at trial), but argues that McNeill’s arguments are procedurally defaulted and, in the alternative, that none of the evidence was material as defined by Brady. We agree as to the materiality of the evidence and affirm the district court. We also agree with the district court that the prosecution did not create a false impression at trial.
Ed. note. Check out the NMCCA Rivera opinion.
Court of Appeals for the Armed Forces
For those who like to do issue spotting for their trial cases, CAAF has now started to populate the next seasons oral argument schedule. Of use to trial practitioners are the briefs.
Air Force Court of Criminal Appeals
United States v. Chuar. Bad-conduct discharge, confinement for 6 months, and a reprimand. officer members found Appellant guilty of one specification of wrongful use of cocaine and one specification of wrongful use of methamphetamine, both in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a.1 Appellant elected to be sentenced by a military judge.
Appellant raises two assignments of error: (1) whether the military judge erred in failing to exclude statements Appellant made to her mental health provider, pursuant to Mil. R. Evid. 513, and in failing to exclude the derivative evidence obtained as a result of those statements; and (2) whether the military
Appellant’s case is before this court a second time. In his initial appeal, on 16 May 2018 Appellant submitted his case on its merits with no assignment of error. However, on 12 September 2018, this court issued a Show Cause Order because a sentencing exhibit, Prosecution Exhibit 7, was missing from the record of trial.
No issues were raised on the first appearance at AFCCA. After this court returned the record, the military judge signed a certificate of correction, and the record, now complete, was again docketed with the court. Appellant then moved for leave to file two supplemental assignments of error. First, Appellant claimed unlawful command influence (UCI) in the manner by which the Government corrected the record. Second, Appellant claimed prejudice for the time it took the Government to obtain the certificate of correction from the military judge.
The failure of Government personnel to include Appellant’s EPR, admitted as a prosecution exhibit, was not shown to be anything other than simple negligence. The record yields no reason to believe the omission was intentional, much less deliberate. Cf. United States v. Bavender, No. ACM 39390, 2019 CCA LEXIS 340, at *67, *68 n.28 (A.F. Ct. Crim. App. 23 Aug. 2019) (unpub. op.) (where the Government docketed “[a] plainly deficient record” deliberately omitting evidence on which it relied to convict).
Court of Appeals for the Armed Forces
United States v. Hernandez. Appellant was convicted MJA of wrongful use of cocaine. On appeal, AFCCA found the MJ abused his discretion in not suppressing evidence--"Appellee unsuccessfully argued [at trial] that the results of the urinalysis test should be suppressed because the search authorization used to obtain his urine was based on material misstatements and omissions by the law enforcement officers." CAAF (5-0) reverses AFCCA finding there was good faith--the court presumed without deciding no probable cause was given the magistrate when seekinga search authorization. In so holding, the court passed over a waiver issue with the motion to suppress. It is noteworthy that an E-5 was providing the information to the magistrate to get a warrant not an OSI agent.
CAAF is powering into the end of session with another trailer clean-up.
No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On further consideration of the granted issues (81 M.J. __ (C.A.A.F. April 14, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), we note that in its sentence appropriateness review, the United States Air Force Court of Criminal Appeals erred in failing to consider additional information about Appellant's post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority. Appellate courts may "consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record." United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020). In United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), we held that either party may comment on properly admitted unsworn victim statements. Therefore, the military judge did not plainly err in permitting trial counsel to present argument based on the victim's unsworn statement. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence, and the record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply.
No. 21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES?
Air Force Court of Criminal Appeals
United States v. (not Cab) Calloway. The continuing saga of AF difficulties in post-trial processing continues with the court again remanding to correct the second post-trial action,
The new action, coupled with the absence of a new court-martial order that correctly reflects the results of the courtmartial, is not only erroneous and ultra vires, but confusing and misleading. We find remand for corrective action appropriate.
United States v. (not Spud) Murphy. In this GP case, Appellant was convicted of using marijuana and using marijuana many times and wrongful possession of marijuana; for which he got 30 days, a BCD, RIR-E2, and forf.
United States v. (not Ralph) Nuzzo, III. Appellant was sentenced, by a panel, to 24 months, BCD, and stuff, because he pleaded guilty to "strangling a fellow service member, biting her, and striking her in the face." There was no PTA. The court finds harmless error in the CA failure to take action on the sentence for a pre-2019 case. There are five issues.
United States v. (not Hans Gustav) Steinert. In this GP case, Appellant was sentenced to two-years, a BCD, and stuff, including a reprimand.He pled guilty to five assault and batteries, an orders violation, and the sex offenses were withdrawn. The case is remanded for post-trial error correction and his four other issues deferred until a second visit.
United States v. (not Chalky) White. In this NG MJA case Appellant was convicted of aggravated sexual contact and twice using indecent language. He was sentenced to four-months, a BCD, RIR, and a reprimand. His seven issues will await another visit to AFCCA because an eighth got him a remand for post-trial errors.
Possible appellate cases
United States v. SFC R.RN. Charges of violating orders, reckless endangerment, communicating threats, and obstruction of justice have been referred to court-martial. The Article 32, UCMJ, preliminary hearing ended in May. Arraignment is yet to be scheduled. Interestingly, his attorney told Stars & Stripes that “While I can’t go into the facts contained within those investigations yet, I think it’s fair to say that SFC N. was not even in the country at the time two of the charges are alleged to have occurred[.]”
United States v. MSG C.M.M. A former Fort Bragg command sergeant major who has since been demoted and allegedly forged documents to retire in the midst of an Army investigation now faces new charges. A trial is set to begin Oct. 11 on the new charges of desertion, failure to obey a regulation, extortion, impeding a sexual investigation and revenge porn, according to an Army trial docket and charge sheet.
Worth the read
Barnett-Mayotte, Cal, Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default (June 8, 2021). University of Pennsylvania Law Review, Forthcoming, Vol. 170, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3862860.
Cheers, Phil Cave
Air Force Court of Criminal Appeals
United States v. Daniel. GP, MJA to attempted possession of MDMA with intent to distribute, divers use of MDMA, divers use of Adderall, a use of LSD; a use of "mushrooms." Sentenced to two-months, a BCD, and stuff (including a reprimand). Appellant's sentence is not "inappropriately severe."
United States v. Trusty. GP, MJA to possessing CP. Sentenced to 3.5 years, DD, and RIR. Raises two issues: impropert TC argument on uncharged misconduct and "unnecessarily displaying contraband to the military judge," and post-trial error. Remanded for corrective action by a CA.
Court of Appeals for the Armed Forces
We are advised the Government may well certify United States v. Mellette to CAAF (discussed here). (From the CAAF Desk.)
United States v. Kyle joins the post-trial issues trailer park. ACCA pointed to the issue in a footnote.
We note that the convening authority failed to take action on appellant's adjudged sentence, and we considered this as part of our review of appellant's case. In light of United States v. Coffman, 79 M.J. 820 (Army Ct. Crim. App. 2020), we find the convening authority's failure to act on appellant's sentence as required by the applicable version of Article 60, UCMJ, while error, was neither jurisdictional nor prejudicial to appellant's substantial right to seek clemency from the convening authority. In making this assessment, we note the appellant pleaded guilty and did not use the opportunity to submit matters to the convening authority under R.C.M.1106. Accordingly, the convening authority's error is harmless in this case.
Courts of Criminal Appeals
They are actively deciding cases, most are summary affirmances.
Potential Appellate Cases
United States v. A Marine. This Marine was accused but not indicted by a grand jury in MA. His GCM began Monday for allegations of murder, voluntary manslaughter, and assault. He was an “on-duty” Reservist at the time of the offenses. (Courtesy of NBCboston.)
United States v. An Air Force Major. A female major is in trial at the USAFA for allegations of sexual and professional misconduct. The accusations include “abusive sexual contact,” abuse of a leadership position, and dereliction of duty, the release stated. In 2019, while working at the Air Force Academy Preparatory School, EC was accused of groping a female trainee on at least two occasions. She was also accused of buying alcohol for underage cadets at the Academy and of having an unduly familiar relationship with a subordinate, according to case records. (Courtesy of The Gazette.)
Pending Appellate Cases
United States v. Stafford. Stafford, an Airman at Mountain Home Air Force Base and covered by the Mountain Home News in 2014 & 2018 with no local court convictions. So reports the Mountain Home News. The non-commissioned officer was prosecuted and convicted of four rapes, one count of attempted sexual assault, one count of aggravated assault, and two counts of simple assault. He was sentenced to 18 years, six months of confinement, reduced in rank to airman basic, and given a dishonorable discharge during his General Court Martial hearing in March 2021.
United States v. Matthews, United States v. DeDolph, United States v. Maxwell, and United States v. Madera-Rodriguez. Army Times has a quick summary. See here, from 2019, which are termed “leaked details.” Madera-Rodriquez is in trial this week.
Cheers, Phil Cave.
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Colorado Supreme Court
Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), suggests an accused must make a Hobson's choice in some situations when he wants to testify, yet there is successfully suppressed evidence. There is the potential for impeachment with the suppressed evidence if the accused testifies. When advising an accused about testifying it is common to identify the value added beyond what is already in evidence and then balance that with any devaluation that might be caused through cross-examination or contradiction. Where there is suppressed evidence the defense becomes the gate-keeper.
So what about the situation where the core part of the defense may lead to trial counsel wanting to impeach or contradict with prior suppressed evidence?
Mil. R. Evid. 304(e)(1) and 311(c)(1) give a partial answer—but does the decision require a more sophisticated analysis? And what should a military judge do when she gets a defense motion-in-limine asking for a ruling about use of suppressed evidence on cross-examination (kick the can down the road) or when the case blows up? Danger, Will Robinson should you decide to testify!
Walder v. United States, 347 U.S. 62 (1954) and James v. Illinois, 493 U.S. 307 (1990), may help further to frame the issue for discussion which brings us Colorado v. Johnson, and the court's discussion of evidence rules and U.S. Supreme Court precedent. In summary,
In this opinion, the supreme court reviews a decision of a divided panel of the court of appeals holding that the trial court reversibly erred by forcing the defendant to choose between excluding unconstitutionally seized evidence and fully pursuing an alternate suspect theory at trial, thereby violating the defendant's right to present a complete defense. The supreme court holds that the impeachment exception to the exclusionary rule does not extend to a defendant's truthful, yet incomplete, presentation of evidence: A defendant may offer such evidence, under the particular circumstances here, without opening the door to previously suppressed evidence.
The court then
[C]oncludes that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence. This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony. Accordingly, we affirm the judgment of the court of appeals.
The dissent argues that, by its decision, the court creates a situation where an accused can exploit the exclusionary rule in an affirmatively misleading manner.
From the great Prof. Berman’s Sentencing Law & Policy.
The Court was notably unanimous in Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021).bThe start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:
Army Court of Criminal Appeals
United States v. Leal.
United States v. Lancaster. Convicted by an 'enlisted panel' appellant was convicted of one specification of stealing military property and sentenced to 30 days, a BDC, a reduction, and a reprimand.
Appellant claims her trial defense counsel violated her right to autonomy in her defense by conceding her guilt at trial. Additionally, in matters submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts her counsel were ineffective because they failed to comprehend the law relevant to her case. We disagree on both counts, and affirm the findings and sentence.
Methinks a little more to come on the concession of guilt by DC.
United States v. Stefanek. In this mixed plea MJA case appellant was sentenced to 24 months confinement, a BCD, and other stuff. Appellant pleaded guilty to one specification of absenting himself from his place of duty and one specification of unlawfully carrying a concealed weapon into his place of work; he also was convicted, contrary to his pleas, of one specification of kidnapping. The appellant raised six issues.
At 0800, on 1 April 2019, Appellant’s supervisor and mentor, SB, sat at her office desk when Appellant came to see her carrying a long shipping box, a duffel bag, and a soda. SB was a noncommissioned officer (NCO) and the two had known each other for approximately eight months. Although Appellant’s voice was faint, SB heard him say, “Can we talk? If not, I’m going to kill myself,” or words to that effect. SB asked Appellant to repeat what he had just said, which he declined to do. SB asked Appellant to write “Do Not Disturb” on the whiteboard outside her door, and Appellant complied. Appellant then reentered SB’s office, closed the door, and locked the pushbutton knob on the inside of the door without being asked. As Appellant sat in a chair next to the door, SB then asked what was in the box, and Appellant told her he had a shotgun. SB asked to see it, and Appellant partially removed the gun from the box. SB did not know if it was loaded and had thoughts that she would not make it out of her office or see her family again. Appellant related that he would kill himself if she did not talk with him or if there were any interruptions. SB had a “long talk” with Appellant and did not feel free to leave even as she needed to use the restroom. During their conversation, SB attempted to contact others outside the office by asking for Appellant’s permission to contact MG, an NCO junior in grade to SB, who was scheduled to come to her office, and to tell him not to come. Appellant gave her his permission to contact MG. MG contacted SB on her cell phone, and SB was able to message him at 0809 to say that Appellant was in her office and had locked the door. This was the first time that she notified anyone that she was being held against her will because Appellant was “watching [her] every move,” and SB wanted to comply with his demands for no interruptions. MG immediately asked, via text message, if he should help or call someone. When SB did not respond, MG knocked on SB’s office door, but no one answered. MG realized the door was locked, so he went to find the first sergeant.
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