U.S. v. Luke, 69 M.J. 309

Trial Stages: Pretrial: Discovery

1. the military rules pertaining to discovery focus on equal access to evidence to aid the preparation of the defense and enhance the orderly administration of military justice; to this end, the discovery practice is not focused solely upon evidence known to be admissible at trial; the parties to a court-martial should evaluate pretrial discovery and disclosure issues in light of this liberal mandate
2. an accused’s right to discovery is not limited to evidence that would be known to be admissible at trial; it includes materials that would assist the defense in formulating a defense strategy
3. an appellate court may resolve a discovery issue without determining whether there has been a discovery violation if the court concludes that the alleged error would not have been prejudicial
4. even if the military judge erred in holding that the government was not required to provide the defense with a prosecution exhibit relating to statistical probabilities that it had prepared to use on redirect examination of a government expert witness in statistical genetics, the error was harmless and not prejudicial, where (1) on direct examination, trial counsel elicited from the expert a full explanation of the statistics presenting the likelihood that biological evidence in the case linked appellant to the physical evidence, (2) on redirect, the exhibit was simply a piece of demonstrative evidence that did no more than reiterate the expert’s testimony on direct examination, (3) the defense had all of the information about databases and populations necessary to understand how the calculations in that exhibit and all the other demonstrative exhibits were derived, and (4) given the multiple statistical formulations presented on direct examination, one additional calculation of the odds that the physical evidence was attributable to appellant would not have tipped the scales against him

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even if the military judge erred in holding that the government was not required to provide the defense with a prosecution exhibit relating to statistical probabilities that it had prepared to use on redirect examination of a government expert witness in statistical genetics, the error was harmless and not prejudicial, where (1) on direct examination, trial counsel elicited from the expert a full explanation of the statistics presenting the likelihood that biological evidence in the case linked appellant to the physical evidence, (2) on redirect, the exhibit was simply a piece of demonstrative evidence that did no more than reiterate the expert’s testimony on direct examination, (3) the defense had all of the information about databases and populations necessary to understand how the calculations in that exhibit and all the other demonstrative exhibits were derived, and (4) given the multiple statistical formulations presented on direct examination, one additional calculation of the odds that the physical evidence was attributable to appellant would not have tipped the scales against him
2. in view of the totality of the circumstances in this case, any violation in appellant’s due process right to speedy post-trial review and appeal as a result of a delay of over 11 years between the completion of his court-martial and the issuance of the CCA’s decision was harmless beyond a reasonable doubt; although the length of the delay was facially unreasonable, the majority of the delay was attributable to the procedural back and forth among the CAAF, the CCA, and the DuBay proceedings, and there was no merit in either of substantive issues appealed by appellant

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. with respect to whether a new trial should be granted based on newly discovered evidence, the reviewing court must make a credibility determination, insofar as it must determine whether the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused; the reviewing court does not determine whether the proffered evidence is true; nor does it determine historical facts; it merely decides if the evidence is sufficiently believable to make a more favorable result probable
2. an appellate court may resolve a discovery issue without determining whether there has been a discovery violation if the court concludes that the alleged error would not have been prejudicial
3. the CAAF’s methodology for reviewing issues of post-trial and appellate delay is to first determine whether the delay is facially unreasonable and, if so, it examines the four factors set forth by the Supreme Court in Barker v. Wingo, 407 US 514; those four factors are: (1) the length of the delay, (2) the reasons for the delay, (3) the appellant’s assertion of the right to timely review and appeal, and (4) prejudice; if this analysis leads it to conclude that the appellant has been denied the due process right to speedy post-trial review and appeal, it grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless
4. issues of due process and whether constitutional error is harmless beyond a reasonable doubt are reviewed de novo

Trial Stages: Petition for a New Trial: Newly Discovered Evidence

1. RCM 1210(f)(2) sets forth the grounds for granting a new trial based on newly discovered evidence; specifically, a new trial shall not be granted on the grounds of newly discovered evidence unless the petition shows that (1) the evidence was discovered after the trial, (2) the evidence is not such that it would have been discovered by the petitioner at the time of trial in the exercise of due diligence, and (3) the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused
2. with respect to whether a new trial should be granted based on newly discovered evidence, the reviewing court must make a credibility determination, insofar as it must determine whether the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused; the reviewing court does not determine whether the proffered evidence is true; nor does it determine historical facts; it merely decides if the evidence is sufficiently believable to make a more favorable result probable
3. newly discovered evidence that forensic chemist who conducted serology analysis of the evidence in appellant’s case was later disciplined for lack of thoroughness and mishandling evidence in other cases did not make appellant’s conviction for indecent assault unreliable so as to require a new trial; there was no indication that the evidence had been contaminated during the serological examination in appellant’s case, and while evidence of the forensic chemist’s misconduct could have been used for impeachment as to his competence, it related only to the performance of the serology screening and not to the DNA tests, which were conducted by another expert; absent any showing of the probability of contamination in the serology screening, the newly discovered evidence would probably not have produced a substantially more favorable result

Miscellaneous Matters: Speedy Trial: Post-Trial

1. the CAAF’s methodology for reviewing issues of post-trial and appellate delay is to first determine whether the delay is facially unreasonable and, if so, it examines the four factors set forth by the Supreme Court in Barker v. Wingo, 407 US 514; those four factors are: (1) the length of the delay, (2) the reasons for the delay, (3) the appellant’s assertion of the right to timely review and appeal, and (4) prejudice; if this analysis leads it to conclude that the appellant has been denied the due process right to speedy post-trial review and appeal, it grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless
2. in view of the totality of the circumstances in this case, any violation in appellant’s due process right to speedy post-trial review and appeal as a result of a delay of over 11 years between the completion of his court-martial and the issuance of the CCA’s decision was harmless beyond a reasonable doubt; although the length of the delay was facially unreasonable, the majority of the delay was attributable to the procedural back and forth among the CAAF, the CCA, and the DuBay proceedings, and there was no merit in either of substantive issues appealed by appellant