Protecting due process in federal courts

6/16/2023

Something for the JSC and chief trial judges to consider? As I was listening yesterday to a federal magistrate judge admonishing the Government to comply with their discovery obligations in our case--I thought maybe the military should look at the practice. And, thanks to PACER, here is the written Order that is routinely given.

In 2020, then-President Donald Trump signed the Due Process Protection Act into law. In response, the EDVA adopted an oral admonishment in public and the above-written Order for posterity. It is possible that the adoption of this practice might be required under Mil. R. Evid. 1102, and certainly Article 36 suggests adopting the practice. The language of the Act does not include courts-martial or allude to "federal courts." As one writer observes,

[T]he developing practices in other federal districts suggest that the DPPA provides the opportunity for courts to go beyond a perfunctory reminder, if inclined. In the Southern District of New York, for example, Judge Laura Taylor Swain has crafted a Rule 5(f) order that highlights the key holdings of Brady and its progeny, carefully outlines the government’s disclosure obligations, and states explicitly the potential consequences of a failure to comply. See United States v. Shalon, No. 15 CR 333, 2020 WL 6873447 (S.D.N.Y. Nov. 23, 2020). While the court did not impose specific deadlines for disclosure, it did state plainly the requirement that prosecutors disclose to the accused material, favorable evidence “promptly after its existence becomes known” to the government, regardless of whether the government credits it. Id. The order further reminded prosecutors that, even in the context of a guilty plea, Brady evidence must still be disclosed in some circumstances, and encouraged the government to seek in camera review of materials for which disclosure may run afoul of a substantial government interest – such as witness safety, victim rights, or protection of law enforcement sensitive techniques. Id. Finally, the court cautioned that it may impose a wide variety of consequences on prosecutors for failures to comply with its order, including evidentiary sanctions, dismissal of charges, and vacatur of a conviction after trial or a guilty plea. Id.

(Emphasis added.) A writer at Steptoe observes,

The Act was passed with broad bipartisan consensus, by unanimous consent in the Senate and by a voice vote in the House of Representatives.

The Act’s sparse legislative history reveals that Congress decided to require mandatory Brady orders in every case because there were previously "inadequate safeguards in Federal law" to ensure that prosecutors complied with their constitutionally-mandated disclosure obligations. House Sponsor Representative Sheila Lee Jackson explained the consequences of these inadequate safeguards by pointing to the case of Alaska Senator Ted Stevens. After Senator Stevens' conviction, Judge Emmet Sullivan dismissed the case at the Department of Justice's request due to post-trial revelations that the government had failed to turn over exculpatory evidence. After the dismissal, Judge Sullivan appointed a special prosecutor to determine whether criminal contempt or other sanctions were warranted against the prosecution team. Ultimately, Judge Sullivan accepted the special prosecutor's recommendation that such sanctions were not viable because the court had not issued an enforceable order requiring the prosecutors to abide by their Brady obligations. The Due Process Protections Act will make such Brady orders mandatory and enforceable in every case to avoid a similar outcome.

(Emphasis added.) The Steptoe piece offers some hints to the defense.

Donald G Rehkopf, Jr.

6/17/2023 15:01:21

Before the emasculation of the Article 32 process, which explicitly recognized the "discovery" component to Article 32's, any discovery issues surfaced early on and if not resolved prior to referral, gave everyone a heads-up as to what was in store, motion wise. That, as SCOTUS once said, "is a relic of a bygone era," and not for the better.

A good starting point is the DoJ's "Justice Manual," 9-5.000 et seq. found here: https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-court-proceedings#9-5.001 which outlines the government's obligations. But, absent Military Judges who will vigorously enforce those obligations, to include sanctions when called for, we will continue floundering.

Trial Counsel

6/24/2023 12:07:39

When we are comparing things to the days of yore, remember that today's discovery obligations post-referral are much more liberal than they used to be.

Whereas in 2000, the Government was only required to give the Defense that which was "material" to the Defense preparation, today, the standard is anything that is "relevant" to the Defense preparation.

I think I speak for most trial counsel when I say that discovery under the current system is crushing. For example, I get requests by Defense to see "all of trial counsel's emails sent to anyone" that probably would have been laughed off in 2000. But today, it's the topic of serious litigation at an Art 39a.

I didn't practice in 2000, but I think I'd gladly take that trade to get back the old "materiality" standard.

Donald G Rehkopf, Jr.

6/25/2023 16:26:44

Trial Counsel: I disagree with you having practiced long before 2000, but your candor is appreciated. You nailed it, I think, without realizing it, i.e., your comment about "discovery obligations post-referral." That's the major problem, under the old Article 32 and Art. 46, UCMJ, versions, we would get most of that stuff before or during the Article 32, proceedings, so everyone would be in a far more informed position as to what, if any motions to bring, discussing with the Accused-Client early on the possibility of a PTA, etc.

The various amendments to Art. 46, have further exasperated the issue and not for the good. You can trace the evolution - when you're bored, here it is:

(Aug. 10, 1956, ch. 1041, 70A Stat. 53; Pub. L. 109–163, div. A, title X, § 1057(a)(6), Jan. 6, 2006, 119 Stat. 3441; Pub. L. 113–66, div. A, title XVII, § 1704, Dec. 26, 2013, 127 Stat. 958; Pub. L. 113–291, div. A, title V, § 531(b), Dec. 19, 2014, 128 Stat. 3363; Pub. L. 114–328, div. E, title LVII, § 5228(a), Dec. 23, 2016, 130 Stat. 2911.)

Lastly, and I'm not taking a pot-shot at you, the JAG schools do a poor job of educating criminal litigators (on both sides of the aisle) explaining the foundations of discovery, of which there are three:
1) Statutory [Art. 46], as implemented by RCM 701;
2) Constitutional, e.g., the Brady / Giglio / Kyles requirements; and
3) Ethical, as mandated by the Rules of Professional Conduct, e.g., Model Rule 3.8(d), which does not contain any "materiality" component, and goes back to 1983.

I've lectured on this a number of times, a Monograph I authored is on my LinkedIn page if you (or anyone else for that matter) are interested. But, thanks for your commentary, dialogue is always good.

Trial Counsel

6/25/2023 21:09:47

In 1999, you would receive every email the trial counsel sent to anyone in the course of the investigation before referral? That seems hard to believe. In my experience before the 2018 amendment to RCM 701, I rarely got *any* email. Weird example, but I specifically recall being denied the military personnel files of military witnesses. And when I renewed my motion in front of the MJ, I was told I was going on a "fishing expedition" and that in any event, I could not show the requested material was in any event not "material" to my preparation. This was pretty common.

Today, it's no longer true. Defense just claims "it's relevant to my preparation," and MJs require us to go on fishing expeditions to hand irrelevant information over to the Defense.

Philip D. Cave link

6/17/2023 15:23:27

Brother Don, there are frequent comments about a prosecutor indicting a ham sandwich. Doesn't the current Article 32 hearing equate to then prosecuting the ham sandwich?

Back in 2021, I submitted a recommendation to the JSC very similar to what the DAC-IPAD now recommends. I noted, I think, correctly that proceeding on "baseless charges" (a component of the old 32) was the equivalent of a due process violation and that CAAF ought to maintain that component of the old 32 going forward should the issue be raised to them. I get there's no right to discovery as under the old rule--don't like, wouldn't like it as a TC, and wouldn't like it as an SJA, but it is what it is.

Bill O'Connor

6/17/2023 15:42:50

Donald/Phillip: I don't understand what you mean by "discovery" in the Article 32 context. If by "discovery", you mean the opportunity to question witnesses under oath, then sure that is no longer there. But that is not the normal definition of "discovery". The Government can't have a Brady issue (the problem being solved by the Due Process Protection Act) just because defense did not get the opportunity to question witnesses before trial.
I also don't see how the Article 32 helped to resolve traditionally defined discovery issues. Maybe the parties talked discovery a little earlier, but real discovery obligations (R.C.M. 701 and 703) don't kick in for the Government until after referral.
I just don't see discovery as a major problem in military justice. It generally works pretty well and is a very open system. I think the friction point is M.R.E. 513 evidence, but the law was pretty unclear until recently on what was discoverable. The defense bar won some of the M.R.E. 513 arguments, but lost others.

Nathan Freeburg

6/18/2023 15:26:43

Bill O’Connor: Well the CAAF thought differently. U.S. v. Garcia, 59 M.J. 447 (CAAF 2004), citing U.S. v. Samuels (1959).

Donald G Rehkopf, Jr.

6/19/2023 12:37:43

Check out the old, e.g., MCM 2000, RCM 405(a) and (f), which expressly refers to discovery by the defense.

Bill O’connor

6/21/2023 12:59:12

Thanks for providing a cite to the 2000 MCM. That version of the MCM does include language that all evidence relevant to the investigation, under the control of the government, should be produced.

I don’t think that changes much though. The current MCM still has the initial disclosures in RCM 404A, Preliminary Hearing production rules in RCM 405, and broad discovery rules in RCM 701.

Maybe discovery was due a little earlier, but what has to be turned over in the end has not changed. And by definition, there couldn’t be a constitutional Brady violation for failing to disclose evidence at the old Article 32.

The real, and old, complaint about the Article 32 changes is that the victim no longer has to testify and be subject to cross-examination. While this does serve a metaphysical “discovery” purpose to allow the defense to learn more information, that is not the same thing as discovery legal obligations that the prosecution has (and which can result in a Brady issue).

SJA

6/21/2023 06:13:43

Re: Art 32 discovery obligations, I feel like not enough attention is paid to RCM 404A. When properly leveraged, it gives gives both TC and DC early insight into issues primed for litigation.

Donald G Rehkopf, Jr.

6/21/2023 11:05:51

RCM 404A does nothing where it's needed most, e.g. Art. 120, offenses. Indeed, the discussion to this Rules expressly states: "This rule is not intended to be a tool for discovery . . . ."

Add to that in 120 cases, the scenario where the complainant consents to be interviewed by the TC prior to preferral, but then "upon the advice of" the SVC, declines to be interviewed by the DC or appear at the Article 32, PH. That process is the antithesis of what RCM 102 mandates: "These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination."

Bill O’Connor

6/21/2023 13:01:06

This just reiterates the point that the real complaint Donald has is that the victim doesn’t have to testify. That isn’t a Brady discovery issue.

Donald G Rehkopf, Jr.

6/21/2023 10:27:18

For those unfamiliar with the Due Process Protections Act, it amended F.R.Crim.P., Rule 5, by adding this language:

"IN GENERAL.-ln all criminal proceedings, on the first scheduled court date when both prosecutor and defense counsel are present, the judge shall issue an oral and written order to prosecution and defense counsel that confirms the disclosure obligation of the prosecutor under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, and the possible consequences of violating such order under applicable law."

Phil Cave link

6/25/2023 17:27:09

On Don's third point about the three foundations of discovery. Reviewing Cone v. Bell, 556 U.S. 449 n.15 (2009) may be helpful. The court references the ABA RPR standards, which the military has largely adopted in its own RPR. For example, the Navy-Marine Corps adopted 3.8.a.(4) and see comment (6) of the rule referencing appellate courts looking to the ABA standards on the prosecution function. Standard 3-5.4.(a)-(c), (e) - (g), is helpful.

Philip D. Cave link

6/29/2023 01:28:26

In addition to these discovery rules, the actions of military counsel are governed by the Army Rules of Professional Conduct. These rules state, in relevant part, "A lawyer shall not" (1) "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value," (2) "counsel or assist another person to do any such act," or (3) "fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party." Dep't of the Army, Reg. 27-26, Legal Services, Rules of Professional Conduct for Lawyers, R. 3.4(a), (d) (May 1, 1992); cf. American Bar Association Model Rule of Professional Conduct 3.4 (2014 ed.). When contrasting the mandates of these discovery and ethics rules with the actions of the trial counsel in this case, we are deeply troubled by the amount of gamesmanship that was employed, the number of pretrial motions that were required to be filed by the defense and resolved by the military judge, and the continual surprises and delays that permeated this case.

United States v. Stellato, 74 M.J. 473, 481-82 (C.A.A.F. 2015).

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