United States v. Bowser
2014 CCA LEXIS 764
| A.F.C.C.A. | 2014Background
- Government appealed interlocutorily under Article 62 after military judge dismissed all charges with prejudice for prosecutorial misconduct related to failure to produce trial counsel’s interview notes for in camera review.
- Appellee Bowser was charged with multiple sexual offenses (rapes, forcible sodomy, and assault) involving SMSgt AB; trial centered on SMSgt AB’s credibility.
- Military judge suppressed pretext phone-call statements as non-hearsay and later found further Brady material, delaying proceedings and prompting in camera review.
- Government directed to produce trial counsel interview notes; after delays and disputed privilege, the judge ordered in camera review of notes and witness interview materials.
- Government initially refused to disclose notes citing work-product privilege; continued noncompliance led to the dismissal with prejudice as the remedy.
- Appellate court denied the Government’s Article 62 appeal, finding no abuse of discretion in the judge’s remedy and that refusal to comply with in camera order was unlawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel could refuse to comply with the in camera order | Government argues privilege/authority to withhold notes exists | Bowser contends order enforceable; no basis to refuse | No valid basis to refuse; order lawful and enforceable |
| Whether dismissal with prejudice was an abuse-free remedy | Government contends alternative remedies warranted delay and noncompliance | Bowser argues remedies insufficient; delay prejudiced defense | Remedy within court’s discretion; dismissal with prejudice affirmed |
Key Cases Cited
- Romano, 46 M.J. 269 (C.A.A.F. 1997) (work-product privilege and in camera review for discovery)
- Vanderwier, 25 M.J. 263 (C.M.A. 1987) (work-product privilege and discovery of interview notes)
- Wuterich, 67 M.J. 63 (C.A.A.F. 2008) (in camera review and privileged material in military justice)
- Behenna, 71 M.J. 228 (C.A.A.F. 2012) (materiality of suppressed evidence for due process)
- Gore, 60 M.J. 178 (C.A.A.F. 2004) (abuse of discretion standard and availability of remedies short of dismissal)