MILITARY JUSTICE PERSONNEL: Prosecution Function: Misconduct

2013 (September Term)

United States v. Frey, 73 M.J. 245 (the standard for determining prosecutorial misconduct is that the trial counsel may prosecute with earnestness and vigor, but while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his 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).  

(trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; however, the RCMs and existing case law both establish that it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members). 

(in this case, trial counsel’s sentencing argument was improper in a prosecution for engaging in sexual contact with a child and engaging in a sexual act with a child, where trial counsel appealed to the members to apply their knowledge of the “ways of the world” to sentence appellant based on a risk of recidivism through serial molestation).

(prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused; relief will be granted only if the trial counsel’s misconduct actually impacted on a substantial right of the accused (i.e., resulted in prejudice); with respect to a sentencing argument, reversal is appropriate when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the accused was sentenced on the basis of the evidence alone).    

(trial counsel in this case overstepped the bounds of proper argument in requesting that the members draw upon information not in evidence (their knowledge of the “ways of the world”) to make a specific conclusion that the accused was a serial child molester who had offended before and in theory would offend again; one is hard pressed to imagine many statements more damaging than the implication that someone who has been convicted of molesting a single child will go on to molest many more). 

United States v. Hornback, 73 M.J. 155 (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; prosecutorial misconduct can be generally defined as 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). 

(the presence of prosecutorial misconduct does not necessarily mandate dismissal of charges or a rehearing; it is not the number of legal norms violated but the impact of those violations on the trial which determines the appropriate remedy for prosecutorial misconduct). 

(in determining whether prejudice resulted from prosecutorial misconduct, an appellate court will look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice inquiry requires the balancing of three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).   

(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone).  

(in this case, despite repeated sustained objections as well as admonition and instruction from the military judge, trial counsel repeatedly and persistently violated the RCMs and MREs by eliciting improper character evidence testimony related to the accused’s drug use generally, and such conduct constituted prosecutorial misconduct). 

(the prosecutorial misconduct inquiry is an objective one, requiring no showing of malicious intent on behalf of the prosecutor). 

(in this case, although the trial counsel’s misconduct was sustained and severe in attempting to elicit improper character evidence testimony related to the accused’s drug use generally from nearly every witness called during the government’s case-in-chief and in arguably making improper closing argument, despite repeated sustained objections as well as admonition and instruction from the military judge, appellant was not prejudiced, where (1) the military judge appeared to have left no stone unturned in ensuring that the members considered only admissible evidence in this case, calling multiple Article 39(a), UCMJ, sessions to prevent tainting the panel, issuing repeated curative instructions to the members, and providing a comprehensive instruction during trial counsel’s closing argument, again explaining that the members could not consider evidence that was the subject of a sustained objection for any purpose, and (2) strong evidence supported the convictions for signing a false official statement and larceny, and the improper character evidence that trial counsel sought to elicit related to the drug offenses, not to the false official statement and larceny offenses; and although the evidence supporting the using spice conviction was not as strong as that supporting the false official statement and larceny convictions, it was substantial, to include two witnesses who testified they saw appellant smoking a substance that he identified to them as spice; furthermore, despite the clumsy attempts by the trial counsel to elicit improper character evidence testimony related to drug use generally, the fact that the panel acquitted appellant of other, weaker drug charges indicates that it took the military judge’s instructions to disregard impermissible character evidence seriously). 

2006

United States v. Rodriguez-Rivera, 63 M.J. 372 (prosecutorial misconduct is generally defined as 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).

 

(in analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness). 

 

(there may be a case, based upon the dialogue between the parties and the military judge, where there is a sound basis in the record for concluding that there was a clear, common understanding between the military judge and the parties as to sequestration, without issuance of a formal order; in such a case, violating that clear understanding could constitute prosecutorial misconduct; in this case, there was neither a formal nor a clearly understood sequestration order, and a sequestration order could not be implied based on the judge’s denial of the government’s request to allow one or both of the parents to be present when the child testified; unless the record demonstrates that witnesses were to be sequestrated, the prosecution cannot be found to have intentionally committed misconduct; as a result, there was no prosecutorial misconduct based on an allegation that the trial counsel intentionally violated the military judge’s sequestration order by allowing the parents of the child to discuss the substance of the child’s testimony during a recess). 

 

(there was no prosecutorial misconduct based on an allegation that the child victim was improperly coached by the trial counsel, the assistant trial counsel, and the child’s parents during a recess in the child’s testimony, where the trial counsel and parents did nothing more that encourage the child to tell the truth and the whole story; to the extent the military judge did have concerns about any influence the discussion during the recess may have had on the child, he mitigated that influence by allowing cross-examination of the child concerning the events during the recess and the possibility that the child was coached or coerced). 

 

(there was no prosecutorial misconduct arising from an allegation that the assistant trial counsel was less than candid about the discussions that occurred between him and a child witness during the recess, where a difference in perception between the assistant trial counsel and a child witness about their discussions was not a sufficient basis for finding that the assistant trial counsel was dishonest with the military judge). 

 

(there was no prosecutorial misconduct arising from an allegation that a government expert witness had listened to other witnesses and collaborated with the government by passing notes to the trial counsel during the trial, where the trial counsel advised the military judge that the notes the witness had passed were not written by her, but that the witness was merely relaying notes passed to the trial counsel from other people; the military judge accepted the trial counsel’s explanation, after having had the opportunity to observe the proceedings and the explanation of the trial counsel; thus, there is no basis in the record to conclude that the military judge’s finding that the trial counsel was candid with regard to this incident was clearly erroneous).
 


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