Earlier this month, the Army Court of Criminal Appeals issued its opinion in United States v. Delisfort. The case was before the Court on a Government appeal under Article 62, UCMJ. Article 62 allows the Government to file an appeal in a case before it is completed in order to challenge a military judge’s decision to dismiss one or more charges, exclude important evidence, or order the disclosure of classified material. In this case, SGT Delisfort was on trial following a sting operation intended to uncover servicemembers communicating with minors in an indecent manner. CID created a fictional teenage girl who entered into a sexually explicit conversation with a profile named “Michael D.” The two eventually agreed to meet at a park.
CID agents did not know “Michael D”‘s identity, so they turned to software that used AI facial recognition tools to identify him. The software compared photos provided in the chat by “Michael D” to images from government records systems. The software identified “Michael D” as SGT Delisfort and provided his name, photo, vehicle make, model, and color, and his license plate. CID agents waiting at the park at the assigned meeting time saw a vehicle that matched the description of SGT Delisfort’s vehicle. However, “Michael D” had told the fictional minor that he would be in a different vehicle and that he had not left his home yet. Based solely on the facial recognition software’s identification of SGT Delisfort, the CID agents arrested him as he attempted to leave the park.
At trial, the Government attempted to ask CID agents about the facial recognition software. The defense objected because the CID agents had not been the ones to run the identity search and the Military Judge agreed, ruling the testimony inadmissible. The Government asked for a recess, during which time they discovered that a separate CID intelligence analyst had run the identity search using the AI software. That individual had not been asked to be a witness and so the Government requested a continuance to secure him to testify at trial. The Military Judge granted the continuance.
Two weeks later, the Military Judge conducted a motions hearing into whether the Government had properly fulfilled its discovery obligations. She learned that the CID intelligence analyst had not been contacted by the Government until after the trial had begun. She also learned that the communication from the analyst to the CID agents with the identification included a link to other possible matches. The CID agent who had received this report testified that the link did not work, but that he did not report the issue to anyone. The defense was never made aware of other possible matches. The Military Judge also learned that the Government turned over additional CCTV footage to the defense only days before trial, claiming that it had only been discovered at that time following a pretrial interview. In actuality, the CID case file had contained this additional footage for at least four months prior. The Military Judge found that the Government counsel did not properly look through the case file or interview Government witnesses in order to fulfill its discovery obligations.
The Military Judge dismissed the charges against SGT Delisfort as a result of the Government’s failure to disclose discovery to the defense, failure to prepare its case, failure to identify the proper witnesses to present its case, failure to interview and prepare its witnesses, failure to comply with court instructions, and failure to comply with its discovery obligations. The charges were dismissed without prejudice, meaning that the Government could bring them again to a new trial.
The Government appealed the Military Judge’s decision to the Army Court of Criminal Appeals, arguing that the dismissal was an extreme remedy that was not just under the circumstances. The Court determined that the Military Judge’s findings of fact were not clearly erroneous and that she did not abuse her discretion in dismissing the case. The case now goes back to the Military Judge to effect the dismissal. The Convening Authority may then reprefer the charges and begin the trial process again.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.