In 1995, a Kentucky jury convicted Garr Keith Hardin and Jeffrey Clark of murdering Rhonda Sue Warford. Robert Thurman, a forensic serologist, testified at their trial that a hair found at the crime scene was “similar” to a sample of Hardin’s hair. After Clark and Hardin spent over two decades in prison, DNA testing proved that this hair was not, in fact, Hardin’s. A state court thus vacated Hardin’s and Clark’s convictions. Clark and Hardin then brought this suit under 42 U.S.C. § 1983 against (among others) Thurman. In discovery, they obtained the “observation notes” that Thurman had written when examining the hairs. These notes suggested that the hair found at the scene might not have matched Hardin’s hair sample in various ways. Hardin claimed that Thurman’s failure to disclose the notes before trial violated his disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963). The district court denied Thurman’s qualified-immunity defense. On appeal, Thurman argues (1) that his notes were neither exculpatory nor material under Brady, and (2) that the law in the mid-1990s did not clearly establish that Brady’s duty of disclosure applied to scientists. Our precedent deprives us of jurisdiction over Thurman’s first argument. And it also dooms his second argument that Brady did not clearly apply to him. We thus affirm in part and dismiss in part for lack of jurisdiction.
. . .
​That brings us to the question at the crux of the parties’ debate: do forensic scientists have a Brady-like duty of disclosure even absent bad faith? Thurman argues that Brady’s generic legal rule reads the right at “too high a level of generality.” Beck, 969 F.3d at 600. Even if prosecutors had an absolute duty of disclosure in the 1990s, Thurman reasons, that rule does not establish that everyone else connected to the investigation (including forensic serologists) also had such an absolute duty. Hardin counters that our caselaw has already rejected this claim. Hardin is right. To be sure, Thurman correctly notes that Brady and the Supreme Court cases applying it have imposed the disclosure duty on “prosecutors,” not investigators like police officers or forensic scientists. Moldowan, 578 F.3d at 377; see Kyles, 514 U.S. at 437–38; Brady, 373 U.S. at 87. Yet we have held that pre-1990 cases clearly established that the police also have a “Brady-derived” duty to disclose material exculpatory evidence to the prosecution. Moldowan, 578 F.3d at 381–82; see Gillispie, 18 F.4th at 918 n.2; Jackson, 925 F.3d at 823−24. In Moldowan, for example, a state court had wrongly convicted the § 1983 plaintiff of a violent sexual assault, and he brought a Brady claim against (among others) an officer involved in the investigation. 578 F.3d at 363–67, 376. The plaintiff alleged that this officer violated Brady because he did not disclose an eyewitness’s “exculpatory statements” suggesting that other men had committed the assault. Id. at 376, 382. We held that “overwhelming” out-of-circuit precedent clearly established the extension of Brady’s no-fault regime to the police before 1990. Id. at 381–82. Admittedly, this caselaw addressed claims against police officers rather than forensic scientists. But “every reasonable” scientist would have recognized that this extension of Brady covered them too. Wesby, 583 U.S. at 63. To be sure, one might have distinguished prosecutors No. 24-5061 Clark, et al. v. Louisville-Jefferson Cnty. Metro Gov’t, et al. Page 14 from others in the criminal investigation for Brady purposes. After all, a state official must answer essentially legal questions suited for lawyers when deciding whether a piece of evidence is material or exculpatory. See Moldowan, 578 F.3d at 379–81; id. at 402 (Kethledge, J., concurring in the judgment in part and dissenting in part). But once we make the leap beyond prosecutors, we see no reasonable argument why this leap should apply only to police officers in the field and not those in the lab. See Horn v. Stephenson, 11 F.4th 163, 171−73 (2d Cir. 2021); Brown v. Miller, 519 F.3d 231, 237−38 (5th Cir. 2008); Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th Cir. 2004). An analogy confirms this point. In Spurlock, we found that the existing caselaw in 1990 clearly established that a police officer would violate due process by intentionally fabricating evidence. See 167 F.3d at 1005–06. In Gregory, we then relied on Spurlock to find that the caselaw clearly established this principle for forensic scientists. See 444 F.3d at 740, 744. Gregory saw “no reason to treat the intentional fabrication of a forensic report differently from the intentional fabrication of” a police report. Id. at 740; see Moldowan, 578 F.3d at 397. If we do not treat these two officials differently for purposes of a fabricated-evidence claim, why should we treat them differently for purposes of a Brady claim? In short, because we have held that it was clearly established in 1990 that Brady’s disclosure obligations covered police officers, we must now hold that it was clearly established that those obligations covered forensic examiners. In response, Thurman claims that no case has clearly established that a forensic scientist might have a Brady duty to turn over “unfinished notes” that contain only initial “thoughts and impressions.” Appellant’s Br. 34. At this stage, however, our precedent requires us to assume what the district court held a reasonable jury could find about these notes: that their exculpatory nature was “apparent” and that they were material to Hardin’s innocence. Clark, 2024 WL 55862, at *11. And, as explained, it was clearly established in 1990 that a scientist could violate Brady by failing to disclose material exculpatory evidence. That rule suffices to rebut Thurman’s qualified-immunity defense under our caselaw. See Gillispie, 18 F.4th at 918 n.2; Jackson, 925 F.3d at 823−24; Moldowan, 578 F.3d at 381–82. Contrary to Thurman’s claim, No. 24-5061 Clark, et al. v. Louisville-Jefferson Cnty. Metro Gov’t, et al. Page 15 these cases do not require plaintiffs to identify a decision that addressed exactly the same type of Brady evidence.

Air Force

United States v. Ching

The Government provided two theories as to how Appellant disobeyed his superior commissioned officer, Maj AG, both of which are based on the MPOs Maj AG issued Appellant to “restrain[ ] from initiating any contact or communication with [JC] either directly or through a third party.” The first theory alleges Appellant disobeyed this order by posting on his Twitter account grievances he had about JC. The second theory alleges Appellant disobeyed this order by searching for JC on the iPhone “Find My” app. Neither of these actions by Appellant meet the definition of “initiating contact or communication.” The charged offense alleges Appellant was restricted from “initiating electronic contact” or “words to that effect,” which is slightly different from the specific wording of the MPO. The difference in wording is of no importance to our analysis and conclusion on this issue. The crux of the issue is whether or not Appellant “initiated contact” with JC and thus, we must determine the meaning of that term.

With respect to the tweets, JC was never asked how she became aware of them and testified she “happened to come across messages” from Appellant on Twitter. While she might have been the subject of words he posted to the public, they were not in fact messages sent to her.

JC testified that she saw the tweets, but the Government failed to prove this was because Appellant “willfully” initiated contact with her. While JC testified the tweets were “directed at her,” there is no evidence this is so. She was the subject of the tweets, but there was no evidence Appellant sent them to her, attempted to induce another to send to her, or put them in a format that she would directly receive.

​With respect to the allegation Appellant used the “Find My” app to locate JC, Appellant argues there was no testimony elicited at trial that he had an iPhone at the time she received the notification from Apple informing her someone was trying to locate JC and there was no testimony or evidence that proved the email address connected to the notice did in fact belong to Appellant. This is true; however, even assuming Appellant attempted to discover JC’s whereabouts using the “Find My” app and the app sent an automatic push-notification to JC informing her someone was trying to find her, this was not a request by Appellant reaching out asking JC to allow him to follow her, nor does it demonstrate Appellant willfully sent a “communication” or “significant signal” to JC. There is no evidence his intention was to communicate with JC. Simply put, this app is not a communication app and Appellant’s attempt to locate JC’s whereabouts, without more, does not meet the definition of “initiating contact.”

Army Court of Criminal Appeals

United States v. Lathrop

Until its certification, the one-volume ROT exhibits efficient, reasonable post-trial processing. However, once the ROT was certified, reasonable diligence ended, and dilatory post-trial processing began. This ROT was certified on 29 December 2023, but not put in the mail until 5 April 2024. This ROT was not mailed for over three months—longer than it took to transcribe, authenticate, and certify it.​

Said differently -- considering the record sat certified for months, it is reasonable for the public to perceive the delay was done to ensure the government got its pound of flesh. Considering the government also benefits from agreements to plead guilty, this is troublesome from both an integrity and fairness standpoint.

"As the motion judge noted, the field of eyewitness identification research did not even exist until years after the defendant's trial. . . . Both parties agree that eyewitness identification research was unavailable to the defendant at the time of trial. There is therefore ample support for the conclusion that the new research on eyewitness identification presented by the defendant qualifies as newly discovered evidence in this case. The motion judge did not abuse her discretion in reaching the same determination."
​
. . . 
As I said, this is a pretty significant ruling. Typically, "newly discovered evidence" consists of things like an alternate suspect confessing, crime scene DNA finally being tested and excluding the defendant as a source, etc. Under this ruling in Gaines, however, changes in science can also constitute "newly discovered evidence." This would suggest that new evidence undermining forensic bite mark comparisons, "Shaken Baby Syndrome," etc. can constitute "newly discovered evidence" and grounds for a new trial.

United States v. Davis, __ M.J. ___ (C.A.A.F. 2025)

Judge P. subsequently decided that he would not "rule on any further unanimous verdict motions until the Army Court issued an opinion on the [unanimous guilty verdict] issue." In an affidavit to the ACCA that he filed in the course of the current litigation, Judge P. explained his reasoning:
• "[I]t was likely the defense would continue to file [unanimous guilty verdict] motions in all future cases regardless of the presiding judge."
• The government likely would not provide any additional authorities to support its position on this issue in any future case, and thus Judge P.'s future rulings would likely be the same.
• This state of affairs would result in additional stays of proceedings which "would last around six months" and would "essentially shut down at least half of the courts-martial in Europe and the Middle East [i.e., in the Army's 5th Judicial Circuit] for lengthy periods of time."
• Such delays "would be inconsistent with military justice."

Judge P. also clarified that his decision not to preside over trials with panel members "was not [an] attempt[] to arrange a particular result (i.e., a denial of the unanimous verdict motion), because [he] could not be certain how other military judges would rule." Further, he did not tell any other military judge how to rule "either expressly or impliedly." He decided to "only detail [himself] to or remain detailed on bench trials and to move other cases toward trial." His actions in this latter capacity would be confined to "handl[ing] arraignments and any motions for which the parties needed rulings significantly before trial in order to properly prepare (e.g., compel experts, compel discovery, compel witnesses, etc.) and to defer other motions, including unanimous verdict motions, to the trial judge for resolution."

United States v. Campos

The granted issue requires us to decide whether the “military judge abuse[d] his discretion by admitting and considering, over defense objection, allegations of additional misconduct in the unsworn victim impact statement.” We hold that the military judge abused his discretion, but we determine that the error was not prejudicial. We therefore affirm the decision of the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA), which affirmed the findings and sentence in this case.

First, the Government contends that a victim may provide context for understanding the impact of the accused’s offenses and that the description about Appellant’s uncharged misconduct properly provided such context in this case.

Second, the Government argues that the description of the uncharged misconduct in the victim impact statement was proper under this Court’s decision in United States v. Mullens, 29 M.J. 398 (C.M.A. 1990). In Mullens, the accused pleaded guilty to two specifications of sodomy with his minor son and one specification each of indecent acts with his minor son and with his minor daughter. As part of his plea agreement, the accused made a stipulation of fact in which he admitted to committing additional instances of sodomy and indecent acts that were not charged. The government presented this stipulation of fact to the members during presentencing. This Court held that no error occurred because the uncharged misconduct was proper evidence in aggravation under R.C.M. 1001(b)(4) (1984 ed.).

[W]e decline to extend the holding of Mullens with respect t evidence in aggravation under R.C.M. 1001(b)(4) (1984 ed.) to apply to victim impact statements under R.C.M. 1001(c) (2019 ed.). Evidence in aggravation is different from a victim’s statement under R.C.M. 1001(c) in significant ways. Aggravation evidence is subject to the Military Rules of Evidence (M.R.E.), which means that a witness who provides such evidence must testify under oath and be subjected to cross-examination. In addition, the military judge must test the evidence for unfair prejudice under M.R.E. 403. United States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001) (following Mullens where the military judge expressly assessed the evidence under M.R.E. 403). In addition, the term “victim impact” now has a specific definition in R.C.M. 1001(c)(2)(B), which did not exist at the time Mullens was decided.