Military Judge dismisses rape case due to prosecutorial misconduct.

The courts have determined that prosecutorial misconduct occurs when 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.”  It is rare that a military judge and/or an appellate court find that a trial counsel has committed prosecutorial misconduct during a court-martial.  However, in a recent Air Force case, the military judge dismissed the government’s rape charges because the military judge found that the trial counsels had committed prosecutorial misconduct.  This dismissal was upheld by the Air Force Court of Criminal Appeals on 3 October 2014 in United States v. Bowser.  The trial counsels in this court-martial refused to turn over their written notes regarding witness interviews to the military judge.  The military judge wanted to conduct an in camera review of the notes to determine if there was any Brady material contained in them that should be turned over to the defense.  Brady material is material evidence favorable to the accused.  It is named based on the 1963 Supreme Court case called Brady v. Maryland.  The trial counsel in Bowser refused to turn over the material to the military judge claiming that the material was privileged.  Obviously, the military judge became very upset by the trial counsel’s non-compliance and dismissed the case.  The government appealed this decision, but the military judge’s dismissal was upheld.  This case goes to show that things can happen in a court-martial that you are not expecting.  Sometimes the unexpected can be favorable to you as an accused, sometimes the unexpected is not favorable.  Either way, you need an advocate by your side at your court-martial or court-martial appeal who is not thrown off by the unexpected. I have a lot of experience and I have seen just about everything at court-martials and court-martial appeals.  If I am by your side during those unexpected moments, I will not what to do.  I can help you both at the court-martial level and in your court-martial appeal.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

William E. Cassara- Military Law Attorney

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