Those of you who have ever been SAUSAs at the local US Attorney’s Office will be interested to see what your colleagues at DOJ think of you, as set out in this opinion from the Ninth Circuit, U.S. v. Harrison, No. 08-10391.   Here is the court’s summary of DOJ’s argument concerning various improper statements by the prosecutor in this case:

Harrison was convicted of assaulting Officer Jenkins and inflicting “bodily injury.” 18 U.S.C. § 111(b).He complains that the prosecutors engaged in improper questioning during cross-examination and improper “vouching” during closing arguments. . . . The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military.  That’s no excuse at all; when the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants’ rights. Indeed, everyone involved could have done better: The defense attorney should have objected as soon as he saw the prosecutors step out of line. And the respected and experienced district judge should not have tolerated this protracted exhibition of unprofessional conduct.

(emphasis added).  Food for thought when they ask for the next SAUSA volunteer.  H/t to JO’C and JH.

12 Responses to “Ninth Circuit Doesn’t Buy “He was a Judge Advocate, so he must be incompetent” Argument”

  1. Phil Cave says:

    An additional thought I had on this was that the defense counsel didn’t object, which might have helped.

  2. John Harwood says:

    My favorite line from this opinion is Chief Judge Kozinski’s final paragraph: “This partial affirmance does not condone what happened at trial. Rather, this mixed result suggests only that trials can sometimes serve justice despite strenuous efforts to the contrary.”

    I don’t know how the other branched do their SAUSA appointments, but in the AF it’s almost always a brand new JAG with zero trial experience. My only surprise is that this type of thing doesn’t happen more often.

  3. Christopher Mathews says:

    Surely I’m not the only person who finds amusing the condemnation — by Judge Jay Bybee — of “outrageous behavior” by the government.

  4. LTC Slade says:

    How embarrassing for SAUSAs, though…what branch was this young JA in?

  5. A. Nonny Mousse, Esq. says:

    Would’ve expected “Judge” Bybee to hold that the prosecutor’s questioning and argument was not erroneous unless it caused severe organ failure or death.

  6. Anonymous says:

    Based on the opinion, I’m guessing the SAUSAs were Army, but it could have just as easily been Navy or Marines.

  7. Anonymous says:

    The scary thing to me is how frequently I’ve heard exactly the same type of questions/argument by trial counsel at court-martial, with no objection by defense.

  8. Phil Cave says:

    Correct Anon 6.23.
    Sadly I’m reading a ROT now where the defense is also engaging in lengthy testimony and argument on HLD as well as the prosecution. It’s MJA so “no harm.” In fact there is an actual argument by the trial counsel on a motion in-limine where the TC argues that because it’s an MJA the rules of evidence can be relaxed — on the MERITS.

  9. Deuce says:

    Army (former) JA. He’s now in a firm in L.A.

    Kozinski is fun to read, but anyone who has practiced in front of him or worked with him has little respect for him. He’s a judicial bully. Probably got too many wedgies when he was a kid.

  10. JWS says:

    Well, I have argued three cases to Kozinski & he was very nice there. No fun quips in the decisions, though.

  11. GreenOnions says:

    “Food for thought when they ask for the next SAUSA volunteer.”

    You mean we can turn the job down? Heh.

  12. Anonymous says:

    From my experience with DOJ attorneys, they’d throw their mother under the bus to save their case – this is despicable – they could have conceded error without taking a potshot at the military lawyers – in the end, they just showed their own yellow stripes and embarrassed themselves. Good for Judge K for calling them on it. Wedgies or not, he’s a straight shooter.