United States v. Private E-2 TIMOTHY J. MURPHY
ARMY 20130333
A.C.C.A.Aug 12, 2016Background
- Appellant Murphy was convicted at a general court-martial of possessing and receiving child pornography in violation of Article 134, UCMJ; sentence approved included a dishonorable discharge, 33 months confinement, total forfeitures, and reduction to E-1.
- Files from 2008 (downloaded pre-enlistment) were found hidden in a system subdirectory; additional files were downloaded on 16 September 2010 via LimeWire and found in the LimeWire folder/recycle bin.
- Defense was appointed an expert consultant (Eric Lakes) in digital/computer forensics, provided a mirror image of the hard drive, and had about four months of pretrial access to him.
- Two weeks before trial defense sought to have Lakes physically present at Fort Hood for trial preparation and attendance, but did not formally move to designate him as a defense expert witness under R.C.M. 703(c)(2).
- The military judge denied physical presence but ordered Lakes be made available telephonically during portions of trial and allowed consultation on exhibits; defense reserved the option to convert Lakes to a witness but never did so.
- On appeal, Murphy argued the judge abused discretion by denying physical production of the defense expert; the Army Court affirmed, finding no abuse of discretion and that trial was fundamentally fair.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of physical presence of defense expert consultant deprived appellant of necessary expert assistance | Murphy: physical presence of consultant at trial was necessary for full benefit and to prepare/assist cross-examination, making denial prejudicial | Government: consultant was provided pretrial and telephonic access at trial; defense never requested Lakes as a trial expert witness under R.C.M. 703 | Denied relief — no abuse of discretion; telephonic access plus pretrial assistance satisfied requirement and trial was fair |
Key Cases Cited
- United States v. Burnette, 29 M.J. 473 (C.M.A. 1989) (defendant entitled to competent expert assistance; scope of assistance at trial may be limited)
- Ake v. Oklahoma, 470 U.S. 68 (U.S. 1985) (state must provide access to expert assistance when sanity or other critical issues require it for due process)
- United States v. Gonzalez, 39 M.J. 459 (C.M.A. 1994) (three-part analysis for showing necessity of expert assistance)
- United States v. Lee, 64 M.J. 213 (C.A.A.F. 2006) (accused must show reasonable probability expert would assist and denial would be fundamentally unfair)
- United States v. Bresnahan, 62 M.J. 137 (C.A.A.F. 2005) (defense must show more than mere possibility of assistance from requested expert)
- United States v. Short, 50 M.J. 370 (C.A.A.F. 1999) (defense counsel expected to attain competence using available materials; due process requires basic tools)
- United States v. Ndanyi, 45 M.J. 315 (C.A.A.F. 1996) (requirements for requesting expert witness testimony under military rules)