Prosecutorial misconduct occurs when the trial counsel, “oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” The military judge may dismiss a case if such misconduct is found. Such a dismissal is highly unusual, though in reality such misconduct may happen more often than it should.
This became an issue in a recent Air Force case where the military judge dismissed rape charges because he or she ruled that the trial counsel had committed prosecutorial misconduct. The dismissal in the case United States v. Bowser was upheld by the Air Force Court of Criminal Appeals in October.
The issue concerned written notes of witness interviews by prosecutors. The civilian defense counsel wanted to know if there was anything in the notes providing evidence favorable to his client. The military judge ordered the trial counsels to supply him with the notes so the judge (not the defense counsel) could review them to see if there was any such evidence (known as an in camera review) which, if found, could be provided to defense counsel. Trial counsels at first agreed to turn over the notes, and then refused to turn them over to the military judge claiming the notes were privileged and could not be released.
Privilege is an important issue when it comes to attorneys providing their notes over to a judge or opposing counsel. An attorney needs to prepare the case and there are times when that privilege should prevent disclosure. However, what was more important in this case is that trial counsel provide any evidence obtained that could show the accused didn’t commit the crime as charged, which is required by a U.S. Supreme Court decision from 1963. The military judge was within his rights to dismiss the case. The government appealed but the judge’s dismissal was upheld.
Whatever the facts of a particular court martial, the ultimate decision may turn on procedural issues. That’s why it’s important that a service member facing a court martial obtain outside defense counsel to review the case and zealously defend the client’s rights. What may appear to be a “slam dunk” case for the prosecution may actually be supported by serious procedural problems that could lead to a lesser charge or a dismissal.
If you or a loved one has been charged or want to appeal a court martial conviction, the military law attorneys of Elkus, Sisson & Rosenstein serving the Denver and Colorado Springs areas are here for you. Call us today at (303)567-7981 for a free consultation.
