GROSS GOVERNMENTAL MISCONDUCT ULTIMATELY HARMLESS IN U.S. V. CLAXTON
August 3, 2017
In the case of U.S. v. Claxton, Air Force Cadet Stephan H. Claxton was convicted of wrongful sexual contact of one alleged victim, attempted abusive sexual contact and assault consummated by a battery of a second alleged victim, and two specifications of assault consummated by a battery for a physical altercation with two other cadets. The allegations consisted of Articles 80, 120, and 128 of the Uniform Code of Military Justice (UCMJ). As a result, Claxton was sentenced to confinement for six months, total forfeitures, and a dismissal.
However, during the case, many witnesses testified against the defendant, including two cadets who were also undercover informants of the Air Force Office of Special Investigation (AFOSI). The status of these cadets was not disclosed to the defense even though the defense specifically requested a discovery request for details about any confidential informants. Following the trial, one of the undercover cadets revealed his status to a newspaper, which then printed the fact.
The U.S. Court of Appeals for the Armed Forces (CAAF) ordered a DuBay hearing (post-trial, fact-finding hearing), after which the Air Force CCA reviewed the situation and found a Brady violation. However, the Air Force CCA did not find prejudice to Claxton. Likewise, CAAF granted a review to determine whether the government’s failure to disclose the informant’s status was harmless beyond a reasonable doubt.
When considering the case, Judge Scott W. Stucky found the conduct of the officers of the court in regard to such a debacle was “profoundly disturbing.” According to the judge, everyone from the trial counsel to the then-acting Judge Advocate General of the Air force contributed to the failure to disclose.
Despite the embarrassment of such a mistake, the CAAF also determined the nondisclosure was harmless in the case because the testimony of the informants was relatively unimportant in the case. Likewise, it was in conjunction with the testimony of other non-informant witnesses with respect to one of the sexual allegations. Also, another witness’s statement was corroborated by several other eyewitnesses who were not informants.
The standard determined by the United States v. Coleman case in 2013 found when the government fails to disclose discoverable evidence in response to a specific request or as the result of prosecutorial misconduct, and the nondisclosure isnot harmless beyond a reasonable doubt, the appellant would be entitled to relief. According to the judges overseeing the case, the majority found no reasonable likelihood the witness testimony of the informants could have affected the judgment.
In addition, Chief Judge Charles E. Erdmann took a slightly different approach to the case. While he agreed with the statements regarding the gross misconduct in the prosecution of the case, he uses a different type of analysis when determining the cumulative effect of the nondisclosure. The judge considered the following aspects of a nondisclosure case:
- Whether or not the nondisclosure hampered or foreclosed a strategic option
- Whether or not the nondisclosure hampered the ability to prepare or present the case
- Whether the nondisclosure substantially influenced the factfinder
- Whether or not the disclosure would have allowed the defense to rebut evidence more effectively
Instead of focusing on whether the case would have succeeded, the inquiry should be on whether the defendant was deprived of his or her best chance of an effective defense. According to this analysis, Chief Judge Erdmann found all four criteria to be satisfied.
For the first criterion, Chief Judge Erdmann notes Claxton’s counsel could have argued the informants may have set Claxton up to commit the offenses, a defense that was prevented by the nondisclosure of their status. While it may not have won Claxton’s case, it may have been the best defense available to him, if he had known it was an option.
According to the judge, the second and fourth criteria were potentially hampered by the government knowing that two of the witnesses were confidential informants. It deceptively leveraged the defense and the panel’s ignorance of the informants’ statuses to add to the credibility of the victims and witnesses. If the defense had known about this, it would have rebutted the prosecution more effectively.
Last, for the third criterion, the judge explained that while people cannot predict precisely how the members would have reacted to learning that two of the principal government witnesses were agents, he theorizes it certainly would have had some effect on their consideration of the government’s case.
Because of this analysis, Chief Judge Erdmann found the nondisclosure was not harmless beyond a reasonable doubt, and he recommended reversing the case and remanding it for a new trial. Despite this ruling, Claxton case has not been overturned. His conviction stands. However, the Air Force JAG Corp has not made the mistake without some repercussion.
Judge Stucky concluded the behavior by the prosecution and the gross governmental misconduct that occurred should not be allowed. According to the judge, what is additionally concerning is that responsible judge advocates knew the cadets were informants and did not inform the trial counsel or did not ensure the trial counsel performed their duties under Brady. The fact that the government managed to salvage the conviction doesn’t erase the “blot on the Air Force legal system” the oversight caused.
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