IN THE CASE OF
UNITED STATES, Appellee
Mark S. JACKSON, Staff Sergeant
Crim. App. No. 34419
EFFRON, J., delivered the opinion of the Court, in which GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed an opinion concurring in the result.
For Appellant: Captain Andrea M. Gormel (argued); Colonel Beverly B. Knott, Major Andrew S. Williams and Captain James M. Winner (on brief); Major Jefferson B. Brown and Major Terry L. McElyea.
For Appellee: Major John C. Johnson (argued); Colonel LeEllen Coacher, Lieutenant Colonel Robert V. Combs, and Major James K. Floyd (on brief); Major Linette I. Romer.
Military Judge: M. R. Ruppert
This opinion is subject to editorial correction before final publication.
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted members, Appellant was convicted, contrary to his pleas, of one specification of wrongful use of methamphetamine, in violation of Article 112a, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 912a (2000). He was sentenced to a bad-conduct discharge, confinement for 30 days, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Criminal Appeals affirmed in an unpublished opinion.
Appellant’s petition, we granted review of the following modified issue:
WHETHER BRADY v.
For the reasons set forth below, we hold that the Government erred in failing to disclose this evidence and that the error was prejudicial.
A. PRETRIAL DISCOVERY: INFORMATION
PERTAINING TO QUALITY CONTROL
March 2000, Appellant provided a urine
specimen during an unannounced inspection of his unit, which was
stationed at Nellis Air Force Base,
prosecution sent a memorandum to Brooks
[C]opies of the Quality Assurance (QA) monthly reports and QA monthly inspections for the three months prior to testing [Appellant]’s specimen, the month of testing, and the month after testing. Please also provide the AFIP monthly proficiency reports for the three months prior to testing [Appellant]’s sample, the month of testing, and the month after testing.
With respect to quality control, the prosecution’s memorandum stated:
The Quality Control quarterly inspections were discontinued after January 1999 when it became a Quality Assurance (QA) function. The QA monthly reports and QA monthly inspections for the three months prior to the member’s specimen, the month of testing, and the month after testing have been requested from Brooks AFB Drug Testing Division.
In contrast to the prosecution’s responses on other subjects, the memorandum did not ask the defense to narrow the scope of the request pertaining to quality control, nor did it assert that the Government was unwilling to provide documents within the request.
B. THE REPORT OF AN ERRONEOUS TEST RESULT AT THE BROOKS LABORATORY
Two and a half months later, on August 2, the Brooks Laboratory mistakenly identified a specimen as positive despite the fact that the specimen was negative. This error was discovered as part of its quality control process, which involved the routine insertion of “Blind Quality Control” specimens in each batch of urine specimens provided by service members. The Blind Quality Control specimens were either “positive” -- containing a reportable presence of an illegal substance, or “negative” -- not containing a reportable presence of an illegal substance. Although the operators of the testing system knew that Blind Quality Control specimens were included in each testing batch, they did not know which specimens within a batch were the real specimens provided by service members and which were the Blind Quality Control specimens.
The error on August 2 occurred when Brooks Laboratory testing operators reported that a particular specimen produced a positive result for the presence of a metabolite of cocaine, even though the sample was a negative Blind Quality Control specimen. As a result of this error, it generated a Discrepancy Report, which identified each individual who handled the negative Blind Quality Control specimen. The Discrepancy Report stated that it was “inconclusive as to how the negative [Blind Quality Control specimen] came to have a positive result” and recommended “that each technician and observer pay closer attention” to their duties.
Three of the laboratory personnel who were identified as participating in the preparation and testing of the erroneously identified Blind Quality Control specimen in August also were involved in testing Appellant’s several months earlier. Although the laboratory’s report of the erroneous testing of a quality control specimen in August was generated a month before Appellant’s trial while discovery was still ongoing, the report was not provided to the parties prior to trial.
C. TRIAL PROCEEDINGS
Defense counsel submitted additional discovery requests on September 14 and September 17, prior to the scheduled beginning of trial on the merits on September 25. Several days before trial, trial counsel and defense counsel had a discussion about discovery. Defense counsel asked the trial counsel to contact the Brooks Laboratory and obtain all reports completed between its June 6 response and the date of their discussion, as well as any other recently identified items that would be responsive to the initial discovery request. Throughout the trial, the defense received additional items from the Brooks Laboratory in response to the discovery request. The defense, however, did not receive the report of the erroneous test that had taken place in August.
At trial, the prosecution’s case relied primarily on a litigation package prepared by the Brooks Laboratory detailing Appellant’s positive urinalysis, along with expert extrapolation testimony by Dr. Vincent Papa, a forensic toxicologist and certifying official at the laboratory. Dr. Papa explained the contents of the litigation package and concluded that Appellant ingested methamphetamine. The prosecution also introduced evidence that: (1) Appellant “rolled his eyes,” shook his head “in a no fashion,” and “seemed a little upset” when his superiors announced the unit sweep; (2) in the context of a discussion about evicting his girlfriend from his apartment, Appellant expressed “concerns that there may [have been] drugs in [his] residence”; and (3) that on two prior occasions, Appellant discussed teas or other substances that one could consume to produce a negative result in a urinalysis test.
The defense focused its trial strategy on attacking the reliability of the Brooks Laboratory positive urinalysis report. During cross-examination of Dr. Papa, defense counsel raised questions concerning the possibility that Appellant’s positive urinalysis was the result of contamination in the testing process. Defense counsel highlighted fifteen prior incidents that the laboratory discovered four months prior to testing of Appellant’s urine specimen in which the Chief of the Confirmation Section at Brooks Laboratory had altered data regarding the testing process. Defense counsel also noted that the Brooks Laboratory did not have a Quality Assurance Officer at the time Appellant’s urine specimen was tested, and that that the Brooks Laboratory had received an inspection report critical of the quality of its testing procedures in place through April of that year. Defense counsel further noted that one urine specimen that was correctly identified as negative had been reported as positive as a result of an incorrect notation on the report. Defense counsel further pointed out that one individual who handled Appellant’s urine specimen subsequently had been decertified because many of his April 2000 testing runs failed. In addition, defense counsel explored the possibility that methamphetamine could have been ingested innocently by Appellant.
In his closing argument on findings, trial counsel relied primarily on the positive urinalysis and Dr. Papa’s testimony to support the contention that Appellant knowingly and wrongfully used methamphetamine. To buttress the credibility of the testing procedures at the Brooks Laboratory, trial counsel asserted that --
the military judge has told you [that] you are entitled to infer that the procedures in the lab for handling and testing the samples were regular and proper, unless you have evidence to the contrary. This is a certified forensic laboratory. Dr. Papa told you what it takes to have that happen and how easily . . . being two standard deviations off, could cause decertification as a forensic lab. They call in these civilian places and pay them lots of money to do these studies . . . to pick them apart . . . . All of that has to be thrust out into the public domain. Everybody is going to know, because they are a forensic lab, and that is why, ladies and gentlemen, you could trust that they followed the rule. And if you haven’t seen any evidence to the contrary in this case, you may assume that there were no problems.
Defense counsel’s argument on findings attacked the credibility of the positive urinalysis result and the litigation package prepared by the Brooks Laboratory. Following instructions and deliberation the members announced a finding of guilty to the charge and specification.
D. POST-TRIAL DEVELOPMENTS
Eleven months after trial, appellate defense counsel first learned of the August 2 error at the Brooks Laboratory. On appeal, Appellant contends the Government erred by failing to disclose the report on the erroneous testing of the Blind Quality Control specimen, violating his right to discovery under the Rules for Courts-Martial, the UCMJ, and the Constitution. See R.C.M. 701 (discovery); Article 46, UCMJ, 10 U.S.C. § 846 (2000)(opportunity to obtain witnesses and other evidence); Brady v. Maryland, 373 U.S. 83 (1963)(discovery obligations as a matter of due process; U.S. Const. Art. V and amend. XIV).
II. DISCOVERY - TRIAL AND APPELLATE STANDARDS
in the military justice system, which is broader than in federal
criminal proceedings, is designed to eliminate pretrial “gamesmanship,”
the amount of pretrial motions practice, and reduce the potential for
and delay at trial.” Manual
R.C.M. 701(a)(2)(B), the Government must
defense, upon request, to inspect “[a]ny
reports. . . of scientific tests or experiments, or copies thereof,
within the possession, custody, or control of military authorities, the
existence of which is known or by the exercise of due diligence may
known to the trial counsel, and which are material to the preparation
defense.” In the absence of a defense
R.C.M. 701(a)(6) requires the Government to
known evidence that “reasonably tends to” negate or reduce the accused’s degree of guilt or reduce the
punishment that the
accused may receive if found guilty. See
United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999)
(citing Brady). These rules
that could be used at trial to impeach” witnesses or other evidence
by the Government.
is not limited to matters within
the scope of trial counsel’s personal knowledge. “[T]he
individual prosecutor has a duty to
learn of any favorable evidence known to others acting on the [G]overnment’s behalf.”
United States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003)(quoting Strickler
the Government fails to disclose
discoverable evidence, the error is tested on appeal for prejudice,
assessed “in light of the evidence in the entire record.”
United States v. Stone, 40 M.J. 420,
423 (C.M.A. 1994)(quoting
The failure to provide the requested information violated Appellant’s right to discovery under R.C.M. 701(a)(2)(B). With respect to prejudice, we note that the prosecution’s case rested primarily on the urinalysis, including the litigation package and Dr. Papa’s testimony in support and in explanation of that package. Although the additional circumstantial evidence introduced by the prosecution regarding Appellant’s attitude on various occasions might have had some marginal value in rebutting defense suggestions of innocent ingestion, it did not constitute independent evidence of illegal drug use.
The defense focused its case primarily on the reliability of the laboratory process. What the defense did not have was a report, generated by the Government between the time of Appellant’s urinalysis and the trial, demonstrating that the laboratory processes had misidentified a negative Blind Quality Control specimen as positive for the presence of drugs. The defense could have used the report to demonstrate the existence of quality control problems, and there is a reasonable probability that such evidence could have influenced the members’ judgment about the reliability of the testing process.
A number of factors underscore the prejudicial impact of the failure to provide the August 2 report. First, the report provided evidence of potential errors in the testing process that was more compelling than the other information used by defense counsel in cross-examination of Dr. Papa. At trial, the prosecution argued that the deficiencies pointed out by defense were the result of identifiable problems that could not have occurred in Appellant’s case. By contrast, the undisclosed August 2 report stated that “it is inconclusive as to how the negative [Blind Quality Control] came to have a positive result,” and then recognized the possibility of human error by recommending “that each technician and observer pay closer attention” to their tasks. This is particularly significant in light of the fact that three persons involved in the Blind Quality Control specimen performed the same tasks in preparation of Appellant’s specimen.
Second, trial counsel emphasized that the defense had failed to demonstrate specific errors in the testing process, and contended that the weakness in the defense case served to validate the accuracy of Appellant’s positive urinalysis result. Trial counsel stated during closing argument that, “the military judge has told you [that] you are entitled to infer that the procedures in the lab for handling and testing the samples were regular and proper, unless you have evidence to the contrary . . . [a]nd if you haven’t seen any evidence to the contrary in this case, you may assume that there were no problems.” Had the defense possessed the August 2 report at trial, the defense could have argued that the members had been presented with evidence of a specific problem in the testing procedures.
We conclude that the error deprived the defense of information that could have been considered by the members as critical on a pivotal issue in the case -- the reliability of the laboratory’s report that Appellant’s specimen produced a positive result. Given the significance of this information in the context of Appellant’s trial the error was prejudicial under the “harmless beyond a reasonable doubt” standard, see Roberts, ___ M.J. at ___ (standard of review applicable to specifically requested information), as well as under the standard advocated in the separate opinion in Roberts, ___ M.J. at ___ (Crawford, C.J., concurring in the result)(applying the standard of “a reasonable probability of a different result” in all cases, regardless of the specificity of the request or prosecutorial misconduct).
The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings and sentence are set aside. A rehearing may be ordered.
CRAWFORD, Chief Judge (concurring in the result):
my separate opinion in United States
v. Roberts, ___ M.J. ___
(C.A.A.F. 2004)(concurring in the result).