2012 (September Term)
United States v. Halpin, 71 M.J. 477 (during sentencing argument, the trial counsel is at liberty to strike hard, but not foul, blows; as a zealous advocate for the government, trial counsel may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence).
2010 (September Term)
United States v. Eslinger, 70 M.J. 193 (where the government calls a number of senior command representatives in sentencing to rebut defense retention evidence, the trial counsel should assess which and how many are necessary).
United States v. Marsh, 70 M.J. 101 (merely urging the court members to consider an unsworn statement for what it is falls within the boundary of fair prosecutorial comment; however, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members).
(trial counsel’s statement during sentencing argument asking the panel members to give less weight to appellant’s unsworn statement because he was not subject to cross-examination fell within the boundary of fair prosecutorial comment, where appellant’s statement was not subject to cross-examination and the members could legitimately consider that fact in assessing its credibility).
(trial counsel’s sentencing argument to the court members that they could not trust appellant, who worked as a helicopter repairman, with the lives of pilots because of his conviction for making a false official statement during a rape investigation and that invited them to put themselves in an aircraft repaired by appellant was unduly inflammatory and constituted plain and obvious error; there was no rational nexus between the fact that appellant lied during the rape investigation and the assertion that he could not be trusted with the lives of pilots in the future; trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge; and this argument was not supported by the testimony of appellant’s squad leader who testified that appellant was in the top ten percent of the soldiers he had supervised, but was currently restricted from working on airplanes during the court-martial because the proceedings might interfere with his thought process while he was working on an aircraft; in fact, appellant’s squad leader and first sergeant testified that they would serve and deploy with appellant again).
(trial counsel is at liberty to strike hard, but not foul, blows; as a result, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members; the trial counsel also must not inject matters that are not relevant into argument; nor can the trial counsel ask court members to place themselves in the shoes of the victim or a near relative).
United
States v. Flores, 69 M.J. 366 (a trial counsel
may not comment directly,
indirectly, or by innuendo, on the fact that an accused did not testify
in her
defense).
United
States v. Ashby, 68 M.J. 108 (it is
blackletter law that a trial counsel
may not comment on the accused’s exercise of his constitutionally
protected
rights, including his right to remain silent; in this case, trial
counsel’s
comments in his opening statement referencing appellant’s invocation of
his right
to remain silent were improper).
United
States v. Paige, 67 M.J. 442 (a military
accused has the right not to
testify, and trial counsel may not comment directly, indirectly, or by
innuendo, on the fact that an accused did not testify in his defense).
(the privilege against
self-incrimination
provides an accused servicemember with the right not to testify at his
court-martial and precludes comment by trial counsel on his silence).
(it is permissible for trial
counsel to
comment on the defense’s failure to refute government evidence or to
support
its own claims).
(a constitutional violation
occurs only if
either the defendant alone has the information to contradict the
government
evidence referred to or the members naturally and necessarily would
interpret
the summation as comment on the failure of the accused to testify).
United
States v. Allende, 66 M.J. 142 (under the
direction of the military judge,
the trial counsel makes arrangements for preparation of the record; the
trial
counsel examines the record and makes any necessary corrections; during
this
process, the trial counsel permits the defense counsel to examine the
record
except when unreasonable delay will result).
(trial
counsel may authenticate the record of
trial if the military judge cannot do so by reason of his death,
disability, or
absence).
United States v. Erickson, 65 M.J. 221 (when arguing
for what is perceived to be an appropriate sentence, the trial counsel
is at liberty to strike hard, but not foul, blows).
United States v. Moran, 65 M.J. 178 (the law
generally discourages trial counsel’s presentation of testimony or
argument mentioning an accused’s invocation of his constitutional
rights unless, for example, an accused invites such testimony or
argument in rebuttal to his own case; such comments may serve to hinder
the free exercise of such rights -- rights that carry with them the
implicit assurance that their invocation will carry no penalty; the
constraint against mentioning the exercise of constitutional rights
does not depend on the specific right at issue).
(in
the closing part of his findings argument to the members, trial counsel
made an obvious error when he commented that when the OSI asked the
accused to consent to the collection of his body hair, the accused
refused and invoked his right to counsel; not only was this comment an
inaccurate characterization of the testimony presented (the accused had
not invoked his right to counsel), but it improperly referenced the
accused’s exercise of a constitutional right and suggested,
intentionally or not, that the members infer guilt from the invocation
of that right).
(it
is improper for a prosecutor to ask the court members to infer guilt
because an accused has exercised his constitutional rights; an argument
by trial counsel which comments upon an accused’s exercise of his or
her constitutionally protected rights is beyond the bounds of fair
comment).
(a
trial counsel’s statement implicating an accused’s assertion of his
rights is not per se impermissible; in context, it may
appropriately be made in rebuttal; additionally, if a statement was an
isolated reference to a singular invocation of rights, it may be
harmless in the context of the entire record).
United
States
v. Edmond, 63 M.J. 343 (prosecutorial
misconduct is action or inaction by a prosecutor
in violation of some legal norm or standard, e.g., a
constitutional provision, a statute, a Manual rule, or an applicable
professional ethics canon).
(several legal
norms are violated when a trial
counsel attempts to or unlawfully dissuades a defense witness from
testifying
at a court-martial - an accused’s due process rights and witness
interference).
(that a
witness’s testimony would have
contradicted the testimony of the government’s own witnesses does not
form a
sufficient basis for the trial counsel to warn the witness about
perjury; rather,
unusually strong admonitions against perjury are typically justified
only where
the trial counsel has a more substantial basis in the record for
believing the
witness might lie -- for instance, a direct conflict between the
witness’s
proposed testimony and that witness’s prior testimony; it is not
uncommon in
litigation, or in life in general, for individuals to have different
perceptions of the same event; the fact that two witnesses have
conflicting
views of an event does not mean, without more, that either witness is
intentionally testifying falsely).
(a trial counsel
substantially interferes with
a witness’s decision to testify where he combines a standard admonition
against
perjury -- that the defense witness could be prosecuted for perjury in
the
event the witness lied on the stand -- with an unambiguous
statement of
his belief that the witness would be lying if the witness testified in
support
of the accused’s alibi; the additional statement will serve as no more
than a
thinly veiled attempt to coerce a witness off the stand).
(the trial
counsel committed prosecutorial
misconduct by confronting a civilian witness subpoenaed by the defense
with
speculation that his proposed testimony was a lie and combining it with
a
warning that the Government would prosecute him; this combination
substantially
interfered with the witness’s decision to testify and had the effect of
unlawfully dissuading him form testifying at the accused’s
court-martial).
(under RCM
703(b)(1), a party is entitled to
the production of any witness whose testimony on a matter in issue on
the
merits would be relevant and necessary; the trial counsel is obligated
to
arrange for the presence of any witness requested by the defense unless
the
trial counsel contends that the witness’s production is not required
under the
rule).
United
States v. Fletcher, 62 M.J. 175 (trial prosecutorial misconduct
is
behavior by the prosecuting attorney that oversteps the bounds of that
propriety and fairness which should characterize the conduct of such an
officer
in the prosecution of a criminal offense).
(while prosecutorial misconduct does not automatically require a
new trial
or the dismissal of the charges against the accused, relief will be
granted if
the trial counsel’s misconduct actually impacted on a substantial right
of an
accused, i.e., resulted in prejudice).
(during the findings argument, the trial counsel offered her
personal
views, made disparaging comments about the accused and his counsel, and
drew
parallels between the accused’s case and the legal problems of various
entertainers and public religious figures; these comments rose to the
level of
prosecutorial misconduct and the misconduct was prejudicial).
(the trial counsel may prosecute with earnestness and vigor --
indeed, she
should do so; but, while she may strike hard blows, she is not at
liberty to
strike foul ones; it is as much her duty to refrain from improper
methods
calculated to produce a wrongful conviction as it is to use every
legitimate
means to bring about a just one).
United
States v. Strother,
60 M.J. 476 (a prosecutor will be disqualified as an “interested party”
if the
prosecutor has a financial or improper personal stake in the outcome of
the
proceeding).
(the due process limitations on officials performing judicial or
quasi-judicial
functions are not applicable to those acting in a prosecutorial or
plaintiff-like capacity; prosecutors need not be entirely neutral and
detached;
in an adversary system, they are necessarily permitted to be zealous in
their
enforcement of the law; we do not suggest, however, that the due
process clause
imposes no limits on the partisanship of prosecutors; prosecutors are
also
public officials who must serve the public interest; the traditions of
prosecutorial discretion do not immunize from judicial scrutiny cases
in which
prosecutorial decisions are motivated by improper factors or are
otherwise contrary
to law).
(the following factors do not
transform a
prosecutor into an “interested party” who must be disqualified as a
matter of
due process: (1) the prosecutor was responsible for reviving a
dormant
investigation; (2) he provided legal advice to commanders and
investigators
during an earlier phase of the case; (3) he assisted in decisions
leading to
grants of immunity; (4) this was his first big case for the command;
(5) the
pressure to secure a conviction for him was great, particularly in view
of the
grants of immunity to other persons whose culpability arguably was
greater; and
(6) his performance at trial likely would have been documented on his
fitness
evaluation reports).
(prosecutors are advisors and
advocates
for a party, and as such, they need not maintain the degree of
neutrality
required of judges; prosecutors routinely provide advice and
recommendations on
the conduct of investigations, grants of immunity, and charging
decisions; the
fact that such decisions later may be challenged at trial or on appeal
does not
disqualify an attorney from serving as a prosecutor as a matter of due
process;
likewise, a prosecutor inevitably faces the pressure of his or her
first big
case, as well as the pressure generated when advice provided in a
pretrial
setting comes under challenge at trial; such pressures, which come with
the
territory inhabited by prosecuting attorneys, do not transform a
prosecutor
into an interested party; and prosecutors are obligated to deal with
such
pressures in the context of the prosecutor’s responsibility to ensure
both that
the guilty not escape and that the innocent not suffer).
(Article 27(a)(2), UCMJ,
provides that no
person who has acted as an investigating officer in any case may act
later as
trial counsel; for purposes of disqualification of counsel, the
President has
narrowed the term “investigating officer” in the MCM to its original
usage –
the disqualification of the officer who conducted the “impartial”
investigation
under Article 32, and we conclude that there is no basis in law to
impose a
broader judicial construction).
(in this case, trial counsel
did not
serve as the Article 32 investigating officer, and appellant has not
demonstrated that trial counsel’s activities so departed from the
normal role
of a prosecutor as to make him a de facto Article 32 “investigating
officer”;
consequently, trial counsel was not disqualified as a result of prior
service
in the same case as a statutory “investigating officer”).
2002
United
States v. Humpherys,
57 MJ 83 (prior
representation may lead to disqualification on either of two
independent
grounds: (1) an attorney may be disqualified if the current
representation is adverse to a former client, and the prior
representation of
that client involved the same or a substantially related matter; and
(2) an
attorney may be disqualified if there is a reasonable probability that
specific
confidences from the prior representation may be used to the
disadvantage of
the former client. See Dep’t of the Army Reg. 27-26, Rules of
Professional
Conduct for Lawyers, Appendix B, Rule 1.9(a)(1) and (2); Dep’t of the
Navy, JAG
Instruction 5803.1B, Enclosure 1, Rule 1.9 (11 Feb. 2000; TJAG Policy
Number
26, Air Force Rules of Professional Conduct, Attachment 1, Rule 1.9
(Feb. 4,
1998)).
(there is a three-pronged
analysis to
determine when former counsel is disqualified from prosecuting a
subsequent
case under the substantial relationship test: the accused carries
the
burden of demonstrating (1) the former representation; (2) a
substantial
relation between the subject matter of the former representation and
the issues
in the later action; and (3) the later adverse employment).
(the substantial relationship
test does
not require demonstration of specific confidences that might be used
against
the former client).
(the confidential information
test does
not require proof of a substantial relationship if, in fact, a client
establishes that confidential information told to a lawyer during a
former
representation might be used against the client in the case at hand).
(under the confidential
information test,
the accused must demonstrate the specific confidences related during
the prior
representation and how they could be used to the disadvantage of the
accused in
the subsequent representation).
(military judges possess ample
authority
to protect the attorney-client relationship during consideration of
disqualification motions, including the power to examine evidence in
camera,
seal records of any Article 39(a) sessions, exclude unnecessary persons
from
hearings, and issue protective orders).
(military judge’s denial of a
motion to
disqualify trial counsel is reviewed for an abuse of discretion).
(military judge did not abuse
his
discretion in ruling that appellant failed to demonstrate a substantial
relationship between the earlier representation and the present case
where
appellant made only vague assertions during the pretrial hearing and
failed to
provide the necessary specificity to determine the commonality between
the
subject matter, causes of action, or issues in the two cases).
United
States v. Quintanilla,
56 MJ 37 (trial counsel’s responsibilities include the
duty to
obtain the presence of witnesses for both the prosecution and the
defense,
including the issuance of military orders for active duty witnesses and
subpoena’s for civilians).
2000
United
States v. Golston, 53 MJ 61 (trial counsel is a
representative
of the United States Government who must act accordingly and refrain
improper
methods designed to wrongfully obtain a conviction).
(a criminal defendant may challenge prosecutorial methods as a due
process
violation and obtain relief if the method challenged is of sufficient
significance to result in the denial of the defendant’s right to a fair
trial).
(it is unprofessional misconduct by a trial counsel to use a former
client’s
confidences to impeach that former client as a witness at a trial by
courts-martial).