NMCCA issued this unpublished opinion today setting aside the findings and sentence in a child molestation case due to prosecutorial misconduct in the trial counsel’s findings argument.  United States v. Boyer, No. NMCCA 201100523 (N-M. Ct. Crim. App. Dec. 27, 2012).  Judge Price wrote for a unanimous panel.

NMCCA held that the TC’s findings argument erred by repeatedly asking the members to “protect” the alleged victim, Appellant’ daughter who was four years old at the time of the alleged offenses.  The court explained:  “[W]e can identify no permissible basis to request the members to perform this role. Quite the opposite, the intended effect appears to be to appeal to the court members’ protective instincts or prejudices to motivate those members to return guilty findings. Moreover, such argument could only tend to mislead the members or prejudice the appellant.”  Id., slip op. at 7.  NMCCA concluded that this argument satisfied the plain error standard.  Id., slip op. at 9.

NMCCA also concluded that the TC erred by arguing facts not in evidence.  Id., slip op. at 9-10.  The court explained:

In his closing argument, the defense counsel emphasized the significance of the military judge’s determination that P.B. was incapable of appreciating the seriousness of the court and incapable of understanding the importance of telling the truth. During his closing argument, trial counsel claimed that he had “studied hundreds and hundreds of trials” and was “not aware of any child ever testifying under the age of seven.” Record at 2001. He later argued “And again, gentlemen, four year-olds simply rarely, if ever, testify.”  Id. at 2008.  This argument is unsupported by the record and contradicted by case citations included in the Government’s pleadings in this case.  . . . The Government’s pretrial motion requesting a ruling on P.B.’s competency to testify included cites to two cases in which several children of similar age testified at trial.

Id., slip op. at 10 & 10 n.5.  The military judge overruled a timely defense objection to this portion of the TC’s argument, but indicated he would instruct the members that arguments aren’t evidence.

During his findings argument, the DC discussed numerous questions he would have asked the alleged victim if she had testified.  On rebuttal argument, the TC told the members, “The fact is all of those questions were asked of P.B.  We wouldn’t be here if they weren’t.”  The defense objected and the military judge’s response suggested that the defense had somehow opened the door to this argument.  NMCCA fuond that this portion of the argument constituted error as well.

NMCCA also concluded that the “trial counsel here made two different arguments that impermissibly disparaged the defense counsel.”  Id., slip op. at 11.  First, the “trial counsel criticized the defense assertion of P.B.’s incompetency as a basis for reasonable doubt as ‘another distortion intended to distract you.'”  Id., slip op. at 12.  The trial counsel also “criticized the ‘desperate level, the desperate lengths that defense counsel are trying to go through to distract you from the evidence,’ and repeatedly characterized the defense as ‘grasping at straws.’ Later, he decried the ‘nonsense the defense has thrown on you.’ One of the themes of his rebuttal was that the defense had ‘popped smoke, calling it reasonable doubt, and now they are scurrying in different corners trying to hide.'”  Id. (internal citations omitted).  NMCCA reasoned:

These comments are disparaging and address the trustworthiness of counsel, not just the state of the evidence. When a prosecutor personalizes the case in this manner, it creates an unfair advantage as the Government begins most trials with the members’ trust in the good faith of prosecutors. That advantage presents yet another non-evidentiary factor that could unduly influence the outcome, and the word choice here crossed the line into impermissible error.

Id. (internal citation omitted).

NMCCA also concluded that the TC had erred by arguing that the defense was trying to silence the alleged victim, P.B. “Trial counsel argued that ‘the defense has done everything they can to silence P.B.’ He then articulated ‘five areas in which the defense and [P.]B.’s father are trying to silence her.’  ‘Again, the defense is using P.[B.] being a four-year-old child against her and they’re making every attempt to silence everything that she’s done and said to get their client off the hook.'”  Id., slip op. at 12-13 (internal citations omitted).  The defense counsel objected and the military judge instructed the members “to base their determination on their recollection of the evidence and that counsel’s argument isn’t evidence.”  Id., slip op. at 13.  NMCCA concluded that the “trial counsel’s use of the words ‘silence’ in reference to the defense was disparaging, inflammatory argument and error.”  Id.

NMCCA also concluded that the TC had impermissibly injected personal opinions into his argument:

Trial counsel offered his “take” that the appellant’s testimony was “rehearsed” and “disingenuous.” This was a personal assessment, and as the word “rehearsed” suggests, there was an unmistakable implication that defense counsel was complicit and would go to “desperate lengths” to distract the members from the truth.  He also asserted in varying forms that the appellant lied to the NCIS and/or the members more than 10 times in argument. And the Government fairly argues that saying the appellant lied was an “invited response” to defense tactics. However, we do find that it was error for trial counsel to disparage the appellant so thoroughly and repeatedly by arguing at least ten times that he was lying. The comments here ventured far into the “gray zone” of improper opinion and disparagement of the accused and were the subject of the appellant’s objection prior to argument.

Id., slip op. at 14 (internal citation omitted).

The court found other impermissible comments as well:

Trial counsel also told a detailed “personal story” in the first-person singular, describing a child that he knew, in an attempt to bolster P.B.’s credibility by illustrating through a personal anecdote that children do not have inherent sexual knowledge, and even if exposed to sexual information are unable to place that knowledge into proper context.

Even putting aside the irrelevance of this commentary, it is error because the trial counsel’s personal perspective—reinforced by the repeated use of the personal pronoun—is necessarily not based on the evidence. It risks creating the inference that P.B. is telling the truth not because of anything offered during the trial, but instead because trial counsel has the ability to evaluate children and has found P.B. credible.

Id., slip op. at 15 (internal citations omitted).

NMCCA held that the combined weight of the errors required setting aside the conviction:

In such a close and emotionally charged case, there is simply too high a risk that the members were swayed by trial counsel’s inflammatory and multiple invitations to consider factors outside of the evidence. Further, we conclude that trial counsel’s improper comments, taken as a whole, were so inflammatory and damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.

Id., slip op. at 19.  NMCCA authorized a retrial.  Id.

21 Responses to “Findings in USMC case set aside due to TC’s findings argument”

  1. John Baker says:

    And this is why we tell counsel to object — great job by Major Chris Hur at the trial level in raising and preserving this issue.

  2. Anonymous says:

    Food for thought — any chance at all this is some sort of reaction to the Heritage Brief or SAPRO training, or at least influenced by them?  This opinion seems to place a significant amount of emphasis on the alleged impropriety of a TC arguing that the system should protect the rights of a voiceless victim from her sexually predatory father — an argument that many of us have seen before (in some fashion or another) without having seen the subsequent wrath of a reversal by an appellate court.  Is NMCCA perhaps sending a message here anticipating (fearing) future arguments along these same lines in light of recent mandated SAPRO training / Heritage Brief etc…?

  3. RY says:

    Agree – excellent job with DC objections.  I applaud NMCCA.  

  4. Charlie Gittins says:

    I agree that DC did a great job.  Unfortunately, the MJ was asleep at the switch.  Anyone care to name the TC?  I think military and civilian defense counsel who might in the future come up against this TC should know to be on the lookout and prepared with this opinion in hand.
    Did the TC get reported to Rules Counsel?  Has Rules Counsel taken any disciplinary action against TC?  I am guessing “not.”  Which just goes to show how jacked up the Navy Rules Counsel process actually is.   
    “During the interview, the NCIS agents misinformed the appellant that his semen had been found on P.B. . . . ”   Wow, “misinformed” is a polite way to say that NCIS intentionally lied to the suspect in order to try to trick a presumptively innocent person into incriminating himself based upon false information.  Nice work, NMCCA, putting lipstick on a pig.   
     
     

  5. Captain Haddock says:

    The TC is out of the service.  No public flogging is required.

  6. Bow Bottomly says:

    As a former TC at Camp Pendleton, the MOJO nor the Senior TC would have ever let me get away with these type of  arguments.   Although the TC is ultimately responsible for what comes out of his mouth, there appears to have been a serious leadership/oversight issue here.  Congrats Mike and Chris.

  7. k fischer says:

    It amazes me when the Government breaks the rules on closing argument, fails to disclose Brady material, or makes ridiculous motions in limine under 412 regarding evidence that should be admitted under 412(c) and 608(c) in cases that appear to be a slam dunk.
     
    In this case where a 4 year-old little girl says to her Mother “Daddy put chocolate on his wink and stuck it in my mouth” while her mother was out of the house and the daughter gets taken to the hospital where the doctors determine that she has chocolate in her hair, how difficult would it be to get a conviction from a panel who was hand selected by the CG and is geared towards trusting the prosecution?
     
    Just reading the facts of this case, I strongly believe that the panel made the right call, which makes the fact that the NMCCA reversed all the more compelling.  I think Anonymous makes a great point, as it appears the NMCCA has sent a message, “Dear Government, in a system that is stacked against the accused, particularly when it involves allegations of a sexual nature, we will let even such a vile creature such as a child molester go free when you break the rules, so that you can do this all over again.”
     
    And, I know the Court did not address this issue, but can someone explain to me the logic of not allowing a 4-year old to testify at trial because she can’t appreciate the importance of telling the truth in the courtroom, yet, it will let in her hearsay statement because she can appreciate the difference between the truth and a lie outside the courtroom?  
     
    What is the general consensus on objecting on improper argument?  If I think that I am going to overruled, then I hesitate to do it, unless it is clearly an issue.  First, the panel sees the judge siding with the Government, which is not a good thing.  Second, I look like I am trying to obstruct the panel from hearing the TC’s closing argument.  It seems that the NMCCA would have found plain error regardless of the objection.  However, if there isn’t plain error, but the DC objects and the trial courts failure to sustain the objection is found to be error, wouldn’t the appellate courts find it did not prejudice the accused?  

  8. Capt Berry says:

    What troubled me most was the MJ.  Mr. Gittins, “asleep at the switch” is being very charitable.  He literally abdicated his role as MJ. 
    As for the TC, I’m genuinely baffled.  His reputation, notwithstanding this case, is stellar.  I would like to think that he was simply having a bad day and that this case is an anomaly.  It is unfortunate that it ultimately contributed to the conviction. 
    IMHO, the reasons to set aside the findings in this case are legion.  I honestly believe that the findings are factually insufficient, and would have preferred that.  But at the end of the day, we got the right outcome.   

  9. John O'Connor says:

    O’Connor’s Law:  Courts-martial are difficult to retry.  Consequently, a trial counsel should take all steps to avoid any possibility of injecting error into the case, even if it will get past the MJ and DC.  Only ask the MJ for that to which you are entitled, only argue that which you are entitled to argue.

  10. Phil Cave says:

    Agree this could, and perhaps should be construed as a peremptory message to keep politics out of the courtroom. 
    Agree with The Big O’.  
    I notice in the opinion that this TC had done something similar in a prior case, and so the defense was ready to alert the MJ, who ignored the defense concerns. Thus assured the tc proceeded to do it again – a time too many. Perhaps another reason for this opinion. The more times the tc is allowed a pass the more risks they take. Some self control might help. 
     

  11. Mike "No Man" Navarre says:

    O’Connor’s law is something for his contemporaries and for current trial counsel to heed.

  12. Michael Lowrey says:

    Capt. Berry, apparently the TC had engaged in exactly this sort of behavior before and the MJ was warned by the DC. From the NCMMA opinion (page 17):

    Of note, prior to closing statements, the defense counsel alerted the trial judge that he believed the trial counsel was going to engage in improper argument. The trial defense counsel cited as the basis for his concern the PowerPoint presentation that trial counsel had prepared for his closing and trial counsel’s improper argument in an earlier trial. The defense counsel provided the military judge with a copy of Fletcher, and requested that the judge instruct trial counsel not to call his client a liar, make disparaging comments about defense counsel, or inject his personal beliefs. The judge declined to provide tailored instructions or guidance to counsel, instead stating that at that time he “[was] in no position to determine that fine line for counsel [and] ha[d] to trust that counsel know what the rules are and will follow them.”

  13. Eckert says:

    Bow – you are 100% right.  Trial numbers are not such that this case would be prosecuted without serious oversight.  When you are trying a child molestation case involving a four year-old victim you definitely should be conducting a moot of your opening; if the STC/MOJO did not tell the TC that your case theme cannot be “protect the victim without a voice” by convicting, something is seriously wrong. 
    K Fischer – I think your point goes to both sides objecting during argument something I have always struggled with doing in front of a jury.  I believe jurors despise it and instantly think you are hiding something.  IMHO, the best way to do it in the military is to object during the argument if the comments are discussing facts not in evidence, when that gets sustained the objecting attorney appears more credible rather than less.  Otherwise, I would generally move for a 39(a) after the argument and list out each comment that requires an objection.  Not sure if that is the right way to do it though and would be interested in hearing others general practice. 
    I also would love a court to analyze the issue you discuss, if a witness is not competent to testify how does that person’s hearsay statement get in (over a confrontation clause objection, a relevance objection, how does it pass a 403 balancing test, etc., etc).

  14. Zachary Spilman says:

    A number of responses to comments above:

    k fischer says:
    What is the general consensus on objecting on improper argument?  If I think that I am going to overruled, then I hesitate to do it, unless it is clearly an issue.  First, the panel sees the judge siding with the Government, which is not a good thing.  Second, I look like I am trying to obstruct the panel from hearing the TC’s closing argument.  It seems that the NMCCA would have found plain error regardless of the objection.  However, if there isn’t plain error, but the DC objects and the trial courts failure to sustain the objection is found to be error, wouldn’t the appellate courts find it did not prejudice the accused? 

    Well, R.C.M. 919(c) says failure to object waives the error of the improper argument, but a plain error analysis is often applied. This came up during the oral argument in United States v. Halpin back in October, and CAAF might give us some new guidance when it decides that case. But on the tactical level, I will either object when it happens (so the members can hear why) or wait until after the argument and ask for a 39(a) (so the members can’t hear why), depending on the precise nature of the objection. I consider this distinction to be totally appropriate and in the spirit of deciding potentially-prejudicial questions of law outside the presence of the members (see, for example, the discussion to R.C.M. 906(b)(13)).

    John O’Connor says:
    Courts-martial are difficult to retry.  Consequently, a trial counsel should take all steps to avoid any possibility of injecting error into the case, even if it will get past the MJ and DC.  Only ask the MJ for that to which you are entitled, only argue that which you are entitled to argue.

    As a trial counsel, I tried a case with an eye towards winning the appeal. That was partly because I had some really fantastic mentors, and partly because I didn’t trust appellate division to not screw up the case (or screw me over). So far, so good.

    Capt Berry says:
    As for the TC, I’m genuinely baffled.  His reputation, notwithstanding this case, is stellar.

    “The trial defense counsel cited as the basis for his concern the PowerPoint presentation that trial counsel had prepared for his closing and trial counsel’s improper argument in an earlier trial. The defense counsel provided the military judge with a copy of Fletcher, and requested that the judge instruct trial counsel not to call his client a liar, make disparaging comments about defense counsel, or inject his personal beliefs. Record at 1974.” Slip op at 17 (emphasis added). I’d like to see that part of the record. Then we can talk about “stellar” reputations (and how they’re really made).

    Also, it looks like nobody has noticed this yet:

    The appellant assigns four errors: (1) legal and factual insufficiency of his sodomy conviction; (2) admission of the alleged victim’s [P.B.’s] recorded statement violated the Confrontation Clause; (3) admission of P.B.’s other hearsay statements violated the Confrontation Clause; and (4) the military judge abused his discretion by admitting P.B.’s out of court statements after ruling she was not competent to testify. Additionally, the appellant has petitioned for a new trial pursuant to Article 73, UCMJ, averring that he deserves a new trial because of P.B.’s post-trial “recantation.” We specified three issues related to whether trial counsel committed prosecutorial misconduct during findings arguments.

    Slip op. at 2 (emphasis added). Bravo to the NMCCA. Bravo.

  15. k fischer says:

    Phil, 
     
    The opinion might have been a wake up call to the Military Judge, too.  
    At least the TC disclosed the Power Point presentation.  I had a TC completely flustered that I requested a copy of the Power Point Presentation she was going to use in front of the panel.  She said it was work product, and said it would be like her asking me for my notes, except for the fact that my notes were not going to be viewed by the panel.  Ultimately, the Military Judge ordered that she disclose the presentation to me, so I could make objections.   
    Eckert, upon further pontification, perhaps the trial judge thought that the excited utterance exception to hearsay was trustworthy and admissible because the child did not have the opportunity to consider the truthfulness of her statement prior to making it due to her excitement. I still think that analysis is bs, but it is the only thing I can think of that the judge might have used.  

  16. Zachary Spilman says:

    I’ve been trying to figure out why I know more about the facts of this case than in the opinion itself. Now I remember that I listened to the oral argument (link to download from the court’s website).

    At the 41:20 mark, there’s this incredible statement by one of the MNCCA judges (I don’t know their voices well enough to say who it was):

    [interrupting government counsel] You’ve used the word context probably six or seven times and I think it’s a good point of departure for us to kind of look at pages 1974 and 1975 of the record and actually place this argument into context prior to when it is delivered.

    And that includes defense counsel ringing the Fletcher bell in front of the military judge and making reference to a case of U.S. v. McFadden. I have no idea of the results of that case – there’s no other context other than clearly it was involving the trial counsel and the defense counsel and the same military judge. The defense counsel says, “I wasn’t aware of Fletcher the last time I went against this prosecutor. I’m aware of it now. And I’m ringing this bell and saying don’t call me a liar, don’t interject your personal beliefs, don’t give disparaging comments about defense counsel.” Record at 1974.

    Mentions specifically the notion of lying. To which trial counsel rejoinders “which it was.” And then we have the military judge say, “I’m in no position to determine this fine line for counsel going forward.” …

    I’m not particularly interested in going after this prosecutor (especially since the CCA saw no need to name him). But I’m really interested in his “stellar” reputation.

  17. Ex TC says:

    I’m totally confused.  I thought CCA stood for Court of Criminal Affirmance, composed of Govt hacks who will do anything to affirm a sex assault conviction, whoabdicate all judicial independent thought to ensure they are in line with the wishes of the Man. What happened here. Was the Kool Aid not available the day this was decided? Or maybe CCA’s aren’t as bad as the rap they often get. 

  18. anon says:

    It does seem strange that the CCA did not address the hearsay/unavailability issues considering that part of the prejudice analysis requires a review of the evidentiary landscape.  It places the appellant in an awkward position if retried and the CAAF in a similar position if certified by TJAG. 

  19. k fischer says:

    Ex TC, 
    I know, right? I was really surprised, too, that they reversed on a child molester case…….wait…..we’re you being ironical………I mean, sarcastic?  
    (My Apologies, Col. Sullivan)

  20. Dwight Sullivan says:

    Zack, those comments are Chief Judge Perlak’s.

  21. Don Rehkopf says:

    I sincerely hope that NMCCA’s opinion here was the proverbial “shot across the bow” to TC who mindlessly (and unethically) think that once detailed as a TC, that their mission is to obtain a conviction.  This is becoming increasingly so (at least for those of us who defend) in “sex cases,” and were military judges seem to mindlessly abdicate to whatever position, regardless of how irrational or distorted, the TC argues.
     
    Within the context of “objections” during closing arguments, let me observe, having taught numerous CLE’s on basic trial defense practices over the years, that this should never be an issue – for the simple fact that failing to object is going to constitute waiver in 99% of all cases.  I have interviewed post-trial, countless courts-martial members and civilian jurors and always ask about how my objections affected them.  While I’ll get to this in a moment, the most “negative” comment that I’ve ever received was something to the effect of, “how could the judge allow him [DA] get away with lying like that?”
     
    The key here (thanks to a wise, learned and experienced adjunct Trial Procedure prof I had) is to prepare and educate jurors (members) from the gitgo.  That means during voir dire bringing up the subject of objections.  That can be as innocuous as asking:  “Do all of you members understand that when either counsel stands and says ‘Objection, Your Honor,’ that the word ‘objection’ is legal-shorthand for alerting the military judge that there’s a legal issue s/he needs to address?”  That sets the stage in general.  If you have a “problematic” TC (as was apparently the case in Boyer) you can refine that by asking a senior member, “Colonlel Smith, if I make objections during Captain Loudmouth’s summation, will that offend or distract you?”  If that doesn’t draw out what you want from the MJ, i.e., “Members, let me instruct you that both counsel have a legal and ethical duty to raise ‘objections” to matters that they believe I need to rule on, and you are to draw no inferences adverse or otherwise, on any such ‘objections.’  Can all of you abide by this rule of how courts-martial are to be conducted?” [which has now accomplished your goal], Colonel Smith will no doubt respond with something on the order of, “No, that’s your job,” and the rest of the panel will of course agree.
     
    Sometimes one must be a tad bit more cirumspect – for whatever reason(s).  So an “Objection on a point of law, your Honor, and we request a 39a session to address it,” will irritate most judges, is not going to cause bewilderment amongst the members IF you’ve laid the foundation for such.  Some MJ’s however misguided, may simply say “no.”  Case-in-Point:  Some years ago, I made such an objection before a MJ (dearly departed from his earthly ‘bench’) commonly referred to by all as the “Bulldog,” when he responded, “No, state your objection!”  So I did:  “Trial Counsel is simply lying your honor, which is improper and illegal and I’ve got 4 factual bases for this objection.”  4 of the 5 panel members were openly laughing because it was indeed apparent that TC was “misrepresenting” [call a spade, a spade, don't give quarter on an objection] facts.  At that point, the MJ is screaming “Article 39a, session, NOW!”
     
    My point here is not to tell “war stories” or embellish some self-induced courtroom humor, but to emphasize that much, if not most, of the so-called “wisdom” about making objections, to include repeated objections, in front of the members, is ill-conceived and misguided.  If you’ve raised the issue in voir dire, trust your gut – if as a TC or DC your gut tells you to object, do it and preserve the record.  Boyer here is a textbook example of an alert and astute DC and the result, a judicial opinion justifying that objection.