A prosecutor's duty and some practice thoughts

CAAF has issued its opinion in Roan, and serendipitously, ACCA issued an unpublished decision in Campbell.

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

Roan is a Brady case. (AFCCA opinion here) (Also a reminder that the changes to appellate jurisdiction can help an Appellant in a subjurisdictional case. From the AFCCA decision.

A special court-martial composed of officer members found Appellant guilty, contrary to his pleas, of one specification of wrongfully using cocaine and the court members sentenced Appellant to restriction to his residence for 45 days, three months of hard labor without confinement, reduction to the grade of E-2, and a reprimand. The convening authority disapproved the adjudged restriction.

A designated judge advocate completed a review of the record of trial pursuant to Article 65(d), UCMJ, 10 U.S.C. § 865(d). The judge advocate found, inter alia, "[t]he findings and sentence are correct in law and fact."

Pursuant to Article 69, UCMJ, 10 U.S.C. § 869, Appellant submitted an application requesting The Judge Advocate General (TJAG) "vacate and set aside" the findings and sentence due to "newly discovered evidence consist[ing] of information that Security Forces investigators interviewed individuals and obtained evidence that was exculpatory for [Appellant], but never turned it over to the [D]efense, instead destroying the notes that were made." On 3 March 2023, TJAG found no error prejudicial to Appellant's substantial rights and denied relief.

Appellant applied to this court for grant of review pursuant to Article 69(d)(1)(B), UCMJ, 10 U.S.C. § 869(d)(1)(B), raising a single issue: whether the Government violated Appellant's due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Rule for Courts-Martial (R.C.M.) 701(a)(6) by failing to inform Appellant of exculpatory evidence and destroying an investigative case file. This court granted Appellant's application for review.
. . .
Appellant contends the Government violated his due process rights under Brady as well as his statutory discovery rights under R.C.M. 701(a)(6) by failing to disclose Inv NM's investigation of the pre-workout supplement, including the purported statement by an MRO that DMHA could under certain circumstances produce a positive urinalysis result for the metabolite of cocaine. The Government contends there was no constitutional or statutory violation, and assuming arguendo the Government should have disclosed the information pursuant to R.C.M. 701(a)(6), Appellant cannot demonstrate a reasonable probability of a different result. We find Appellant is not entitled to relief.
. . .
​The findings and sentence as entered are correct in law, and no error materially prejudicial to the substantial rights of Appellant occurred.

Judge Sparks, writing for a unanimous court finds it necessary to set aside the findings and sentence and "A rehearing is authorized."

Some facts. 

Appellant and N.W. were roomies, attended the same Fourth of July social function, both tested positive for cocaine--and N.W. was acquitted at his trial.

Because of the factual connections AFSFOI ran a "companion case" investigation.

N.W. asserted that the result could have come from a per-workout powder purchased by their other roomie--an innocent ingestion defense.

Appellant's counsel made appropriate discovery requests and motions. The Government discovery was sloppy. In N.W.'s trial he raised similar issues and moved for dismissal for "prosecutorial misconduct" which the MJ denied. However, the MJ said that the Government was ""grossly negligent" and "failed to comply with their discovery and notice obligations."" The MJ did not find the Government actedd "willfu[ly] or intentional[y]."

AFSOI had actually done some research into the pre-workout powder, discovered it could result in a false cocaine result but never told the TC about that and destroyed their case notes. However, the TC did know about that.

[T]he Government [at AFCCA] attached a declaration of Maj A.N. [In which] Despite being trial counsel for both Appellant and N.W.'s courts-martial and a supervisory attorney, Maj A.N. claimed that "no member of the trial counsel (team) was aware that Inv. (X) had done this research or that he failed to document it. Maj A.N.'s explanation for the Government's negligence was that his office was "dealing with minimal manning" at the time."

Judge Sparks then engages in a tutorial about Brady.

• Brady [and its progeny, that I usually refer to as Brady+, is information that "might cast doubt on an accused's guilt.
• It doesn't matter if the failure is in "good faith" or "bad faith."
• It's Brady if favorable, "either because of its exculpatory nature or value as impeachment evidence."
• Was there prejudice.

{PSA interruption for a test question.

Q: How many times do the opinions in Brady use the word exculpatory?

A: Once--Mr. Justice White's separate opinion. Brady v. Maryland, 373 U.S. 83, 90 (1963). Brady involved the knowing use of perjured testimony to gain his conviction. 

"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). Despite this, there are plenty of people who suggest only "exculpatory" evidence must be produced under Brady.}

Back to the program.

• "Material evidence" is that with a reasonable probability, upon disclosure, of leading to a different result in the proceeding.
• There need not be a showing--"by a preponderance" that an acquittal would have resulted. "A reasonable probability does not mean an accused would "more likely than not have received a different verdict." "O]nly the where the likelihood of a different result is great enough" to undermine confidence in the verdict.
• THE DUTY TO DISCLOSE EXISTS REGARDLESS OF A DEFENSE REQUEST, "and the duty encompasses impeachment evidence as well as exculpatory evidence."

{Disclosure of Brady+plus material is a self-executing duty of the prosecution. The duty to disclose favorable evidence exists even without a request by the accused. See United States v. Agurs, 427 U.S. 97 (1976), Smith v. Cain, 565 U.S. 73 (2012).}

• A form of cumulative error analysis applies to all the withheld evidence. Slip op. at 9. 
• AFCCA's acceptance of Maj A.N.s disclaimer is wrong. "It is well accepted that a prosecutor's lack of knowledge does not render information unknown for Brady." Wilful ignorance (or dereliction in failing to adequately investigate a case) are no defense. Slip op. at 11.

{Discovery not limited to matters within the scope of trial counsel's personal knowledge. "The individual prosecutor has a duty to learn of any favorable evidence known to others acting on the Government's behalf." Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)).

"Trial counsel must exercise due diligence in discovering [favorable evidence] not only in his possession but also in the possession . . . of other 'military authorities' and make them available for inspection." Simmons, 38 M.J. 376, 381 (C.M.A. 1993).

The prudent prosecutor will resolve doubtful questions in favor of disclosure.  Kyles, 514 U.S. 419, 439 (1995) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976); Berger, 295 U.S. 78, 88 (1935)).}

Judge Sparks concludes:

SFO jointly investigated the Article the Article 112a,112a, UCMJ UCMJ,, violations violations inin both N.W. and Appellant’s cases both N.W. and Appellant's cases for use of a use of a banned substance at the direction of and in coordination banned substance at the direction of and in coordination with the Chief of with the Chief of Military Justice in the legal office. Maj A.N., as a supervisory attorney and trial counsel in both as a supervisory attorney and trial counsel in both Appellant and N.W.’s courts-martial, certainly should have known what joint investigative steps were taken in the“companion cases” he was prosecuting. Maj A.N. stated that it would have been difficult to “wall off” one trial team from the other due to staffing issues. Under the most charitable interpretation, Maj A.N. remained willfully ignorant as to SFOI’s investigation into the pre-workout powder. If Maj A.N..N. had exercised reasonable diligence in preparing the Government’s case, he would have been aware of the steps taken by SFOI, the the destruction of destruction oevidence, and the investigators’ derogatory data the investigators' derogatory data. Thus, he was responsible for turning over to the defense responsive material and exculpatory information. In addition, there are some cases where are some cases where “the loss or destruction of evidence is loss or destruction of evidence is. . .. . . so so critical to the defense as to make a criminal trial critical to the defense as to make a criminal trial fundamentally unfair.” Such is is the case here.

---

United States v. Campbell, ARMY 20230030, (A. Ct. Crim. App. Sept. 12, 2025) (unpub. op.).

Campbell is instructive in several ways. It's, if nothing else, a partial list of Trial Counsel do's and don'ts that are well established in the rules and law and some warnings for defense counsel.
​
1. [Note to the defense] When the MJ rules against the defense on a motion in limine, that does not mean the defense doesn't have to object during the presentation of testimony. "A motion in limine does not always preserve an issue for appeal absent later objection. Citing Dollente, 45 M.J. 234 (C.A.A.F. 1996).

{Note: see also M.R.E. 103(b)--if necessary, clarify if the MJ intends a definitive or conditional ruling.}

Here, the prosecution told the MJ that the victim "would appear, "but she was wavering on what she would testify to when she takes the stand. The MJ conditioned admissibility on any "uncooperative nature of the complaining witness." thus, the military judge preliminarily allowed a 911 call and body camera footage of the victim under M.R.E. 807--the residual hearsay rule. The MJ declined to hold a ruling until the complaining witness had testified.

​{Take a look at United States v. Chzachorowski, 66 M.J. 432 (C.A.A.F. 20028) (A 4-1 decision addressing admission under M.R.E. 807).}

{Note for the defense: As an alternate ask, in a case such as this, why not ask the MJ to direct the Government to call the complaining witness as their first witness. Normally, MJs don't try the parties cases for them. But in this case, that would seem the correct and appropriate way to proceed. The admissibility ruling was conditional--that condition was whether the complaining witness would testify fully. If the complaining witness testified fully--as she did in this case--the condition for admission apparently set by the MJ under M.R.E. 807 was not satisfied--the MJ could then reconsider the admissibility of the M.R.E. 807 profferred evidence.}

Rather than call the complaining witness first, the prosecution had witnesses testify to the 911 call and the body-cam footage." All without objection. The last witness was the complaining witness who gave testimony "at length and in detail."

Because the defense said "no objection" when the evidence was offered, the defense waived any objection. ACCA went on to say that there was no prejudice anyway.

Take note of n.11, because ACCA infers the failure to object may have been tactical. (Consider this. Could have used the bodycam statement to impeach her in a targeted way if the MJ had excluded the evidence for the government's failure to satisfy M.R.E. 807???

2. [Note to Government] "We begin by reminding practitioners that the role of government counsel is unique, in that, as "the servant of the law" and the representative "of a sovereignty whose obligation is to government impartially," his or her interest is not to win but to do justice above all."

Trial counsel's comment during closing argument . . . was a clear violation of appellant's constitutional right and longstanding black letter law. This was not an indirect reference or ambiguous innuendo. It was a clear, direct reference to appellant's decision not to testify on his own behalf[.] . . . Further, it was made immediately after trial counsel's vouching for the victim's credibility . . . [nor] was it a "fair response" to a claim or argument by the defense counsel. Trial counsel's later backtracking to say he was referring to the defense theories is belied by the very nature of the statement[.] 

There was no objection by the defense. However, "it was likely because the MJ immediately intervened and admonished the trial counsel sua sponte." . . . Thus, viewing the trial counsel's statements in their entire context, the closing argument was a blatant violation of the law and Appellant's Fifth Amendment privilege." Slip op. at 16-17.

The MJ had also, during the government's case-in-chief, directed the prosecution to stop commenting on the witness testimony as "fantastic;" "excellent" and "that make a lot of sense." The admonishment was "you have to not testify . . . Don't do it again, or else I'll stop you."

3. {Note: Take a look at Andrews.}

Despite our finding of no prejudice, the prosecutorial conduct in this case raises concerns we feel compelled to address. We remind all MJs of their "sua sponte duty to insure [sic] that an accused receives a fair trial." United States v. Watt, 50 MJ 102, 105 (CAAF 1999) (internal quotation marks omitted) (citation omitted); see also United States v. Knickerbocker, 25 CMA 346, 2 MJ 128, 129, 54 C.M.R. 1072 (CMA 1977) ("At the very least, the judge should have interrupted the TC before he ran the full course of his impermissible argument."). Military judges are neither "mere figurehead[s]" nor are they "umpire[s] in a contest between the Government and accused." Watt, 50 MJ at 105 (internal quotation marks omitted) (quoting United States v. Kimble, 23 CMA 251, 253, 49 C.M.R. 384, 386 (1974)).

United States v. Andrews, 77 M.J. 393, 403-04 (C.A.A.F. 2018) see also United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019).

(I do note this is another Fort Bliss case.)

So, what saved the case for the government?

a. The MJ's interventions and immediate instructions to the members.
b. The weight of the evidence.
c. Mixed findings, suggesting the Members followed the MJ's instructions.

The prosecution asked for 22 months, and a DD, the defense asked for HLWC and RiR to E-4, and the MJ gave 120 days and a BCD--for one specification of DV (he was found not guilty by the members of all the other charges).

{Note to defense: if the client makes an unsworn statement and does not exhibit remorse or concern for the victims or the statement is "shallow, artificial, or contrived," the Government can argue that in sentencing. That is why in some cases some of us have, very, very, very, occasionally recommended the client not make an unsworn--defense you know who those clients are--typically the ones you have to counsel against impeaching the verdict in an unsworn. See, e.g., United States v. Paxton, 64 M.J. 484, 486-87 (C.A.A.F. 2007)

Also, take a look at Williams, 50 M.J. 436 (C.A.A.F. 1999) (the case on specificity of discovery requests that gets you more love at court and on appeal)}

So, the larger question in all of this is one to be concerned about. If senior judge advocates and supervisors of junior judge advocates practice this way, what are the junior judge advocates learning, how will they practice, and how will they teach their juniors?