Don’t forget the possibility of the violation of Brady v. Maryland. Even with guaranteed full disclosure in military law, it can happen.
The issue is treated creatively in the CHAMPION magazine of the National Association of Criminal Defense Lawyers.
Some tips from a series of extremely useful CHAMPION articles on Brady claims:
· Consider using 42 USC 1983 [ originally the Civil Rights Act of 1871] directly against prosecutors and police officials. There is case law suggesting that typical prosecutorial immunity does not cover trial counsel conduct unrelated to the judicial process where prosecutors are off on a “frolic of their own.” See generally Van de Kamp v. Goldstein, 555 US 335 (2009).
· Some SJA offices espouse extremely narrow compliance with Brady. Ask: Does the SJA office have a standing policy calling for liberal disclosure? Is there a culture in the SJA office of such limited, grudging disclosure?
· Consider a twist on the usual insistence on discovery – use ABA standards concerning Brady. Progressive states such as California, Florida, New Jersey, Illinois, Michigan, and Pennsylvania have implemented relatively broad discovery rules, modeled on the ABA. These “ethical rules” require prosecutors to promptly respond to discovery requests, ferret out all information in the possession of the prosecution or its agents, and make timely disclosure. All this, regardless of whether trial counsel believes it likely will change the result of the proceeding.
· ABA ethical model rules suggest that trial counsel carry special responsibilities requiring disclosure of all possibly relevant evidence. This ethical rule approach provides an appealing entry to Brady issues –an ethical stance, through which the defense can militate against grudging compliance by trial counsel. Among the possibilities: Possible sanctions by the military judge. An example of such of an order requiring trial counsel disclosure in civilian courts is provided.
Some good places to start in military law:
military mandatory disclosure
- For a general discussion of the defense right of access and prosecution obligations, see California v. Tombetta, 467 US 479 (1984).
- Government duty to disclose any favorable evidence known to those acting on behalf of the Government. Failure to disclose is a due process violation, regardless of prosecution good faith. Mahoney, 58 MJ 346 (CAAF 2003)
- Government error in failing to disclose potentially exculpatory records not harmless beyond a reasonable doubt when the defense articulated several plausible ways in which their strategy would have been different, had they received timely information of the withheld material. Stewart, 62 MJ 668 (Air Force 2006).
- When specifically-requested evidence is not provided, it is automatically considered material unless the government can show otherwise. Adens, 56 MJ 772 (Army 2002).
- The benefit of the doubt goes to the accused. Morris, 52 MJ 193 (1999).
- Part of the government responsibility is to provide information in possession of military drug labs. Figueroa, 55 MJ 525 (Air Force 2001).
- Mishandling/destruction of prosecution of potentially exculpatory evidence entitles an accused to relief under three conditions:  missing evidence has value and should have been known to the trial counsel,  comparable evidence is unavailable, and  the government acted in bad faith. Ellis, 57 MJ 375 (Air Force 2002).
- Even if there is no evidence of bad faith, the accused is still entitled to relief if the evidence is essential to a fair trial. Ellis, 57 MJ 375 (Air Force 2002).
- The prosecution must search beyond its own files, even into related cases, and into specific types of information designated in defense discovery. Williams, 50 MJ 436 (1999)
- If government testing will destroy the only available evidence, the defense should be informed and given an opportunity to be present. Garries , 22 MJ 288 (1986).