2008 (Transition)
United
States v. Webb, 66 M.J. 89 (a military judge
did not abuse her discretion
in ordering a new trial in a drug use case where the government failed
to
disclose impeachment evidence concerning the witness who was assigned
as the
observer of the accused’s provision of a urine sample for drug testing;
evidence that the observer, a link in the chain of custody, had
received
nonjudicial punishment under Article 15 for dishonesty may have raised
serious
questions in the minds of the factfinder concerning the identity of the
urine
tested and whether it was unaltered when it was tested; this point may
have
borne extra weight with the factfinder where the government expressly
prohibited having such persons serve as observers; alone or in
conjunction with
the accused’s denial of use, this evidence may have raised reasonable
doubt in
the factfinders’ minds as to the accused’s guilt; furthermore, the
possession
of this evidence may have altered the accused’s trial strategy -- he
may not
have testified; under all of these circumstances, the military judge
cannot be
faulted for concluding that it was probable that had the prosecution
provided
the nonjudicial punishment to the defense, it would have produced a
substantially more favorable result for the accused -- in other words,
it
undermined confidence in the outcome of the trial; accordingly, in this
case,
the government’s failure to disclose exculpatory evidence affecting a
witness’s
credibility that the accused specifically asked the government to
disclose was
not harmless beyond a reasonable doubt).
2007
United
States v. Key, 65 M.J. 172 (at a post-trial
hearing to determine whether a government informant withheld relevant
information from the defense that affected the outcome of appellant’s
trial and whether appellant was entitled to a new trial, the military
judge erred by not allowing the trial defense counsel to testify as to
what transpired during that counsel’s pretrial interview of the
informant; the defense claimed that the informant purposely withheld
information about whether the government paid her for her testimony;
the defense counsel’s testimony would have been relevant to a
determination of the informant’s credibility and whether she purposely
withheld impeachment evidence from the defense; by refusing to permit
the defense counsel to testify at the post-trial hearing and by
considering only the informant’s testimony concerning the pretrial
interview, the military judge unduly restricted the ambit of the
post-trial hearing).
2005