IN THE CASE OF
UNITED
STATES, Appellee
v.
Mark S.
JACKSON, Staff Sergeant
No.
03-0336
Crim. App.
No.
34419
Argued
Decided
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.
Counsel
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Criminal Appeals affirmed in an unpublished opinion.
On
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.
I.
BACKGROUND
A.
PRETRIAL DISCOVERY: INFORMATION
PERTAINING
TO QUALITY CONTROL
In
March 2000, Appellant provided a urine
specimen during an unannounced inspection of his unit, which was
stationed at Nellis Air Force Base,
On
The
prosecution sent a memorandum to Brooks
Laboratory on
[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.
On
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
Discovery
in the military justice system, which is broader than in federal
civilian
criminal proceedings, is designed to eliminate pretrial “gamesmanship,”
reduce
the amount of pretrial motions practice, and reduce the potential for
“surprise
and delay at trial.” Manual
for Courts-Martial,
Under
R.C.M. 701(a)(2)(B), the Government must
allow the
defense, upon request, to inspect “[a]ny
results or
reports. . . of scientific tests or experiments, or copies thereof,
which are
within the possession, custody, or control of military authorities, the
existence of which is known or by the exercise of due diligence may
become
known to the trial counsel, and which are material to the preparation
of the
defense.” In the absence of a defense
request,
R.C.M. 701(a)(6) requires the Government to
disclose
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
encompass “[e]vidence
that could be used at trial to impeach” witnesses or other evidence
presented
by the Government.
Discovery
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
v.
Greene, 527
If
the Government fails to disclose
discoverable evidence, the error is tested on appeal for prejudice,
which is
assessed “in light of the evidence in the entire record.”
United States v. Stone, 40 M.J. 420,
423 (C.M.A. 1994)(quoting
III.
DISCUSSION
The
The
prosecution’s
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).
DECISION
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):
See
my separate opinion in United States
v. Roberts,