In United States v. Sigrah. An enlisted panel convicted Appellant of one sexual assualt while intoxicated and sentenced him to 18-months, and a DD+.. (The appellate briefs are here.)
ACCA addresses two of five assigned errors. (The Ramos issue was raised as a Grosty.)
CID had the standard video interviews of Appellant, the victim, and two witnesses. Only the Appellant's interview was properly preserved and available for trial. The other videos had been "automatically overwritten" before being preserved on a disc, so were no longer available.
Having found a R.C.M. 914 violation, we next address whether the military judge abused her discretion in finding that the government’s failure to produce the qualifying statements in this case did not constitute a violation of R.C.M. 914 because the loss was excusable under the good faith loss doctrine. The military judge, in a “finding of fact,” concluded there “was no evidence presented that law enforcement acted in bad faith or in a negligent manner in recording” the victim’s and SPCs D and B’s statements. We agree with the military judge’s determination that there was no evidence of bad faith but find her conclusion as to negligence is clearly erroneous in light of the record.
The error however was harmless because the defense had witness statements, interviews, and the opportunity to cross-examine. Of course this does ignore the fact that we often find seeds for fruitful cross-examination from recorded videos. Sometimes you wonder if two different people wrote the statement and gave the interview.
ACCA casts the discovery issue as a bare assertion of error because the trial defense counsel effectively waived the issue. No IAC claim was raised.
[The defense] was first made aware of the DNA report the day before trial. Defense counsel did not raise any concern at that time, or request a continuance. Defense counsel averred that the defense did not receive a copy of the DNA report until the panel was deliberating on a sentence. Defense counsel made clear that he was “not specifically alleging anything at this time,” and that if, after studying the report, he believed appellant was “entitled to relief under Brady . . . the defense will make a request for a post-trial Article 39(a) session with the Court.” In his concluding sentence, defense counsel reiterated, “We do not request a decision today.” A month later, defense counsel submitted post-trial matters discussing the issue but requesting no specific relief. He never requested a post-trial hearing. The record before this court merely contains a copy of the DNA report in question marked as an appellate exhibit, but we have no testimony, much less expert testimony, as to its meaning. We have no litigation or rulings concerning if and when the report was disclosed or made available to the defense. We have no litigation or rulings as to whether the DNA report contains information within the ambit of Brady.
Nor, apparently, did ACCA consider a Dubay hearing. Appellant's Brief of Assignments of Error contains this sentence.
[In the 1105 submitted] defense counsel noted that the USACIL report excluded appellant as a semen contributor to all of the tested items, making this report material to preparation and defense of his case. (Clemency Matters).
ACCA goes on to hold that even if there was a Brady issue, it would be a loser anyway.
During oral argument, appellate defense counsel contended the CAAF’s opinion in United States v. Garlick, 61 M.J. 346 (C.A.A.F. 2005) precluded this court from finding waiver. We disagree. Having carefully reviewed Garlick, not only is it factually distinguishable from appellant’s case, but nowhere does it state, expressly or impliedly, that Brady claims are not subject to waiver.
Maybe CAAF will take this issue of waiver? Will CAAF want to decide that there was a meritorious claim of harm or order a Dubay? Another person's sperm matched the tested evidence and Appellant's did not. Appellant's brief argues that,
[D]ue to the government’s malfeasance, appellant was unable to present a full and complete defense. The presence of SPC ’s sperm cell DNA in the bed would have made the defense case stronger in at least four key areas.
One of the four key reasons arguably raises the SODDI defense.
Cheers, Phil Cave.
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