(1) Whether the military judge abused her discretion in granting the defense motion for new trial; and
(2) Whether prior to authentication the military judge has the authority in a post-trial Article 39(a) session to set aside a conviction and order a new trial as a remedy for a discovery violation discovered post-trial.
In December 2006, the accused was convicted of using cocaine based on a "naked" urinalysis. Despite a May 2006 defense discovery request for derogatory information pertaining to government witnesses, the prosecution did not provide notice, until a week after trial, that the urinalysis observer had received nonjudicial punishment in November 2000 for making a false official statement, filing a false claim, and wrongfully attempting to obtain $3,653. The Air Force drug abuse testing instruction requires that an observer must not have received nonjudicial punishment for acts of dishonesty or false official statements. "On ten separate occasions, seven prior to and including the date of the appellee’s urinalysis, TSgt H signed observer briefings attesting to the fact that he had never received punishment under Article 15, UCMJ."
It gets even better. Before trial, the trial counsel interviewed TSgt H and inquired if there was anything in his background that he should know about. TSgt H admitted to the trial counsel that he had received an Article 15 some years ago. It is not clear if the trial counsel inquired as to the reason for the Article 15. The trial counsel had a paralegal contact the personnel center to retrieve a copy of the NJP. The NJP wasn't received until a week after trial, when it was promptly provided to the defense. But the trial counsel did not inform the defense counsel of the NJP before trial.
In a post-trial Article 39(a) session, prior to authentication of the record, the military judge ordered a new trial. The Government appealed and the AFCCA affirmed the judge's ruling. United States v. Webb, Misc. Dkt. 2007-01 (A.F. Ct. Crim. App. May 10, 2007). The AFCCA's discussion of the second issue is as follows:
The government avers the military trial judge did not have the authority to grant a new trial because R.C.M. 1210(a), states: “At any time within 2 years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence . . . .” (emphasis added). The government further argues that since the convening authority has not taken action in the case, the military judge had no authority to grant the defense motion for a new trial.
However, case law reveals further guidance. Our superior court removed any “substantive distinction between a military judge[’]s authority to consider post-trial issues under R.C.M. 1102(b)(2) and R.C.M. 1210(f) . . . .” United States v Meghdadi, 60 M.J. 438, 441, (C.A.A.F. 2005) (citing United States v Schaff, 29 M.J. 60, 65-66 (C.M.A. 1989)). The determination whether sufficient grounds exists for ordering a new trial rests with the authority considering the petition. United States v Sztuka, 43 M.J. 261, 268 (C.A.A.F. 1995) (citing United States v. Bacon, 12 M.J. 489, 492 (C.M.A. 1982)). In the case sub judice, the military judge had the authority to consider and rule on the motion for a new trial.