MILITARY JUSTICE PERSONNEL: Prosecution Function: Misconduct

2020 (October Term)

United States v. Norwood, 81 M.J. 12 (a prosecutor proffers an improper argument amounting to prosecutorial misconduct when the argument oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense).   

(trial counsel may properly ask for a severe sentence, but they cannot threaten the court members with the specter of contempt or ostracism if they reject their request). 

(in this case, the prosecutor committed error that was plain or obvious in the sentencing proceeding when she pressured the members to consider how their fellow servicemembers would judge them and the sentence they adjudged instead of the evidence at hand; furthermore, neither the defense counsel nor the military judge took action to address the issue themselves, and thus there was a total lack of curative measures to redress this misconduct; in addition, the error caused material prejudice to the substantial rights of appellant where the prosecutor’s egregious attempt to pressure the members resulted in a reasonable probability that the sentence adjudged was not based on the evidence alone and was greater than it would have been otherwise).  

2018 (October Term)

United States v. Voorhees, 79 M.J. 5 (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; prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, for example, a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon; prosecutors have a duty to refrain from improper methods calculated to produce a wrongful conviction).

(in this case, trial counsel’s personal attacks on defense counsel, personal attacks on appellant, and his expressing personal opinions, bolstering, and vouching constituted prosecutorial misconduct). 

(trial counsel committed clear and obvious error when he accused defense counsel of misplaced lying, and made the defense theory of the case seem fantastical, saying defense counsel’s imagination was not reasonable doubt; the trial counsel may not label the defense counsel a liar or fabricator, nor may he engage in any argument amounting to prosecutorial misconduct, and it is improper for a trial counsel to attempt to win favor with the members by maligning defense counsel, including accusing the defense counsel of fabrication; when trial counsel maligned defense counsel, he risked both turning the trial into a popularity contest and influencing the members such that they may not have been able to objectively weigh the evidence against appellant; rather than deciding the case solely on the basis of the evidence presented, as is required, the members could have been convinced to decide the case based on which lawyer they liked better; indeed, the panel could have been so swayed by trial counsel’s disparaging remarks that it believed that the defense’s characterization of the evidence should not have been trusted, and, therefore, that a finding of not guilty would have been in conflict with the true facts of the case; trial counsel’s attacks on defense counsel were all the worse given that they were gratuitous and obviously intended to curry favor with the members; he drew comparisons between his style and that of defense counsel, framing defense counsel as an overly imaginative liar, while contrasting himself as a highly experienced, well-trained prosecutor; the trial counsel’s obvious attempts to win over the panel by putting himself in a favorable light while simultaneously making defense counsel look like a liar who would say anything to get his client off the hook were plainly improper; the trial counsel erroneously encouraged the members to decide the case based on the personal qualities of counsel rather than the facts; not only did his comments have the potential to mislead the members, but they also detracted from the dignity and solemn purpose of the court-martial proceedings).

(trial counsel committed clear error when he repeatedly attacked appellant’s character, calling him perverted, sick, and a narcissistic, chauvinistic, joke of an officer; at one point, trial counsel went so far as to describe appellant as, not an officer, not a gentleman, but a pig; later, trial counsel stressed this theme further, adding that the nature of appellant was the nature of his conduct, that is disgusting, deplorable, and degrading).

(disparaging comments by trial counsel were improper when they are directed to appellant himself; in this case, trial counsel’s word choice served as more of a personal attack on the accused than a commentary on the evidence; such conduct is inconsistent with the duty of the prosecutor to seek justice, not merely to convict; trial counsel had only to demonstrate that appellant violated the UCMJ and not that he was perverted, deplorable, disgusting, chauvinistic, narcissistic, or a pig; nor was it necessary for trial counsel to repeat these insults throughout his argument; in doing so, trial counsel risked unduly inflaming the passions of the panel). 

(trial counsel committed clear and obvious error when he improperly expressed his personal opinion about appellant’s guilt, utilized personal pronouns, vouched for the credibility of the government witnesses, and bolstered his own credibility by stating that he had been trying cases for a long time and did not go TDY and leave his family 250 days a year to sell the panel a story). 

(while a prosecutor may argue that the evidence establishes an accused’s guilt beyond a reasonable doubt, he is prohibited from expressing his personal opinion that the accused is guilty).

(the prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused posed two dangers: such comments could convey the impression that evidence not presented to the members, but known to the prosecutor, supported the charges against the accused and could thus jeopardize the accused’s right to be tried solely on the basis of the evidence presented to the members; and the prosecutor’s opinion carried with it the imprimatur of the government and may have induced the members to trust the government’s judgment rather than its own view of the evidence).

(in assessing prejudice with respect to prosecutorial misconduct, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; under this test, appellant has the burden to prove that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different).

(in this case, although trial counsel’s misconduct amounted to grievous error, appellant failed to establish prejudice where appellant failed to demonstrate that trial counsel’s misconduct was so damaging as to call into question whether the members convicted appellant on the basis of the evidence alone; despite the severity of trial counsel’s misconduct and the absence of curative measures, several other factors militated against finding prejudice; first, defense counsel failed to object to any of the prosecutorial misconduct; second, the panel was comprised of senior officers who were uniquely situated to assess whether appellant’s conduct was unbecoming under Article 133, UCMJ, and trial counsel’s arguments were thus unlikely to impede these experienced officers’ ability to recognize conduct unbecoming and weigh the evidence against appellant; and third, the evidence that appellant violated Article 133, UCMJ, so clearly favored the government that appellant could not demonstrate prejudice).

(in every case, and especially a case alleging unbecoming conduct, trial counsel should take care to remember that they too are military officers and should conduct themselves accordingly; in this case, as he attempted to sway the members to convict appellant of conduct unbecoming pursuant to Article 133, UCMJ, trial counsel himself approached the line of indecorum; attacking one’s opposing counsel is as unacceptable as launching ad hominem attacks on the accused in open court; the token trait of a good prosecutor is the ability to be adversarial without being hostile, but here, unfortunately, trial counsel was openly hostile and petty, leaving propriety and good advocacy at the courtroom door).   

2017 (October Term)

United States v. Andrews, 77 M.J. 393 (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; 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; prosecutors have a duty to refrain from improper methods calculated to produce a wrongful conviction; 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)). 

(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 assessing prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; the third factor alone may so clearly favor the government that the appellant cannot demonstrate prejudice).

(in this case, trial counsel’s misconduct was severe because: (1) it occurred with alarming frequency; (2) it persisted throughout the entirety of trial counsel’s closing argument, including through the rebuttal; (3) the entire trial was five days long and the trial on the merits lasted for only three days; (4) the panel deliberated for less than three hours before convicting appellant; and (5) the military judge issued just one ruling for trial counsel to abide by and trial counsel failed to do so). 

2016 (October Term)

United States v. Sewell, 76 M.J. 14 (improper argument is one facet of prosecutorial misconduct).

(prosecutorial misconduct occurs when trial counsel oversteps the bounds of that propriety and fairness that should characterize the conduct of such an officer in the prosecution of a criminal offense; such conduct 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). 

United States v. Pabelona, 76 M.J. 9 (prosecutorial misconduct is action or inaction by a prosecutor in violation of some legal norm or standard, such as a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon; 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; 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). 

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

(where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone). 

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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