U.S. v. Schmidt

IN THE CASE OF

UNITED STATES, Appellee

Harry M. SCHMIDT, Major

U.S. Air Force, Appellant

No. 04-8016

Crim. App. No. 2004-01

United States Court of Appeals for the Armed Forces

Decided June 7, 2004

Counsel

For Appellee: Colonel LeEllen Coacher and Major James K. Floyd (on brief).

For Appellant: Charles W. Gittins, Lieutenant Clayton W. Moushon, Major Andrea M. Gormel, and Major James E. Key (on brief).

Military Judge: Mary M. Boone

this opinion is subject to editorial correction before final publication.

_{PER CURIAM:}

_{This appeal is from the denial by the
United States Air Force Court of Criminal Appeals of Appellant’s
petition for
extraordinary relief in the nature of a writ of mandamus.
See Schmidt v. Boone, 59
M.J. 841 (A.F. Ct. Crim. App.
2004). Appellant, who currently holds a
security clearance, wishes to discuss with his civilian defense counsel
certain
classified information for purposes of preparing his defense at a
pending
court-martial. The information at issue
in this appeal was made available to Appellant by the Government in the
course
of Appellant’s performance of his military duties.
This appeal does not involve a request for
pretrial discovery.}

_{The Government denied civilian defense
counsel’s request to be processed for a security clearance.}_Id._{at 845.}_{The
Government further informed Appellant
that civilian counsel would be provided “access” to classified
information only
pursuant to a specific procedure:}

_{Identify
in an e-mail message to me . . . the exact materials to which you think
the
civilian counsel needs access (citing paragraph or chapter, AFI or
other
publication number and, MOST IMPORTANTLY, identifying the original
classification authority - the “owner/originator of the classified
material”).
. . . Your request must also contain a
full justification of why the civilian counsel needs to be granted
access to
the additional classified materials.}

_{At trial, Appellant filed a motion for
appropriate relief from the refusal to process civilian defense counsel
for a
security clearance. The military judge
denied
the motion, and the Court of Criminal Appeals affirmed that ruling.}_Id._{at 845, 858.}

_{Appellant sought review in this Court of
the decision by the Court of Criminal Appeals.
While the appeal was pending, civilian defense counsel obtained
an
interim security clearance in his capacity as a Marine Corps reserve
officer. The Air Force has agreed to
honor that clearance for purposes of the present court-martial. See Exec. Order No. 12968, 60 Fed.
Reg. 40245 (}_{Aug. 2, 1995}_{). As a
result, that part of the present appeal
relating to the request for a security clearance is moot.
The remaining aspect of the appeal concerns
the determination by the court below that Appellant may not discuss
information
with civilian defense counsel who possesses a security clearance
without first
obtaining approval to do so by submitting a request through the
prosecution. 59 M.J.
at 857.}

_{The lower court relied on Military Rule
of Evidence 505(h)(1) [hereinafter M.R.E.]
as the
basis for requiring Appellant to submit a request through trial counsel
for
approval to discuss classified information with his defense counsel.}_Id._{at 854-55, 857.}_{M.R.E. 505 is
a rule of evidence which
enables the Government to assert a privilege against disclosure of
classified
information. The rule also authorizes
limited disclosure under subsection (g)(2)
and
restrictions on disclosure through the use of protective orders under
subsection (g)(1). The rule applies both
when the defense seeks to obtain information from the Government and
when the
defense intends to disclose classified information in connection with a
court-martial.}

_{The lower court erred in failing to
recognize that M.R.E. 505(h)(1) applies only when the defense seeks
classified
information from the Government or when the defense has determined that
it
reasonably expects to disclose classified information in the course of
a
proceeding. The rule does not come into
play when the defense is making a preliminary evaluation of the
evidence it already
possesses to determine what evidence, if any, it may seek to disclose
as part
of the defense. The rule requires notice
to trial counsel and contemplates litigation before the military judge
-- an
exercise that requires sophisticated legal judgments, evaluation of
defense
tactics, appropriate procedural devices, and skilled legal advocacy. The rule does not require an accused, without
benefit of his own counsel, to engage in adversarial litigation with
opposing
counsel as a precondition to discussing with defense counsel
potentially relevant
information which the accused already has personal knowledge of based
on his
prior authorized access as part of his military duties.}

_{The Government may establish appropriate
procedures to protect its interests in restricting access to classified
information
pursuant to statutes, rules, and regulations.
See, e.g., Dep’t of Defense,
Regulation
5200.1-R, Information Security Program (January 1997). The Government must also respect the
important role of the attorney-client relationship in maintaining the
fairness
and integrity of the military justice system.
Now that civilian defense counsel has been granted an
appropriate
security clearance, we are confident that the military judge can take
appropriate action to protect the Government’s interest in restricting
disclosure of classified information in a manner that respects the
right of an
accused servicemember under the Sixth
Amendment and
Article 27, UCMJ, 10 U.S.C. § 827 (2000), to the effective assistance
of
counsel in preparing a defense. See}_{United States}_{v. King}_{, 53 M.J.
425 (C.A.A.F. 2000)(mem.).}

_DECISION

_{The decision of the United States Air
Force Court of Criminal Appeals is vacated, and the ruling of the
military
judge is reversed. The stay on the trial
proceedings imposed by this Court is lifted, and the case is remanded
to the
military judge for further consideration consistent with this opinion.}

Home Page | Opinions & Digest | Daily Journal | Scheduled Hearings | Search Site