Sunday, May 13, 2007

Interesting unpublished AFCCA opinion rejecting Article 62 appeal

While the Air Force Court's opinion in United States v. Webb, No. Misc. Dkt. 2007-01 (A.F. Ct. Crim. App. May 10, 2007), is unpublished, it is well worth the read.

Staff Sergeant Webb was charged with wrongfully using cocaine. The government's case was based solely on a positive urinalysis. A panel of officer members found him guilty.

After trial, the defense moved for a new trial based on newly discovered evidence: an NJP of Webb's urinalysis observer for offenses including false official statement, filing a false claim, and wrongfully attempting to obtain $3,653.13. An Air Force Instruction precludes anyone who has been NJPed for dishonesty or making a false official statement from serving as a urinalysis observer. On the day of Webb's urinalysis, as well as several times before and after, the observer had attested -- apparently falsely -- that he had never been NJPed.

Although the defense had previously filed a discovery request seeking dirt on the prosecution's witnesses, the trial counsel didn't turn over this information until AFTER the trial. Before the Article 32, the observer had admitted to the trial counsel that he had, in fact, been NJPed. The observer testified at the Article 32 and the parties stipulated to his testimony at the actual court-martial. Six days after the trial, the TC received a fax documenting the observer's NJP. At a defense-requested post-trial session, the military judge granted a motion for new trial. The government then appealed.

The Air Force Court first ruled that the military judge had the legal authority to grant the post-trial relief. Webb, slip op. at 3. The court then reviewed the military judge's ruling for an abuse of discretion. In the course of upholding the military judge's discretion to order the new trial, the Air Force Court was critical of the trial counsel's actions: "Had the trial counsel divulged this information when he first learned of it prior to the Article 32, UCMJ, hearing or had the trial counsel followed-up and requested derogatory information in a timely manner, or even followed-up when he finally did request the information, this issue would not even be before this Court." Id., slip op. at 4.

Citing case law authorizing a new trial upon discovery of evidence that would substantially impeach critical prosecution evidence on a material matter, the Air Force Court asked: "Did the accused enjoy a full and complete trial?" Id. (citing United States v. Sztuka, 43 M.J. 261, 268 (C.A.A.F. 1995)). The Court's answer: "he did not."


John O'Connor said...

Without reading the opinion, if CAAFlog's description is accurate (always something to be leery about ;-)), that's the right result.

But the reality is that the observer in a urinalysis case can be almost entirely impeachable and it shouldn't really matter. I always loved it when the defense tried to pee (pardon the pun) on the observer for not following all protocols, because that dog really won't hunt if you think about it. I'd always argue to the members, "so what are they saying, their own client adulterated his sample and the observer missed it?" Without evidence that the accused lost control of his sample before he turned it back in, a dead guy could be the observer and it wouldn't matter.

But I guess the accused has the right to try to pull the wool over the eyes of a panel, and the observer's NJPs are good fodder for that cynical exercise, so a new trial is probably appropriate.

John O'Connor said...

Oh, and I should add that my sense that the AFCCA probably got it right pertains only to the second issue, whether a decision to grant a new trial by the MJ was correct if he has such authority. I can't say I have looked at the jurisdictional question and therefore am not in a position to agree or disagree with it.