CAAF will hear oral argument in the Marine Corps case of United States v. Hornback, No. 13-0442/MC (CAAFlog case page), on Monday, January 13, 2014. The court will consider a single issue:
Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in finding no material prejudice to Appellant’s substantial right to a fair trial after it assumed, without deciding, that trial counsel’s actions amounted to misconduct, and whether the military judge’s curative instructions sufficiently addressed the cumulative nature of such conduct as well as any corresponding prejudice in light of the factors identified in United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).
Appellant was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of using “spice” in violation of a general order, signing a false official statement, and larceny of military property, in violation of Articles 92, 107, and 121, UCMJ. He was sentenced to confinement for three months and a bad-conduct discharge.
In the words of the NMCCA, “[A]ppellant faced a litany of offenses relating to wrongful use of prohibited substances, Basic Allowance for Housing (BAH) fraud, provoking speech, and communicating threats.” United States v. Hornback, No. 201200241, slip op. at 2 (N-M.Ct.Crim.App. Feb. 21, 2013). The trial counsel – identified in the public documents only as a female captain – presented the court-martial with a “tripartite theme” that tied together Appellant’s offenses as a web of “drugs, decay, and dishonesty,” and painted Appellant as “a criminal infection that is a plague to the Marine Corps” (words the trial counsel actually used in closing argument). App. Br. at 21. During the short two-and-a-half day trial (App. Br. at 34), the trial counsel committed acts that “Appellant briefs [as] twenty-two allegations of prosecutorial misconduct, fifteen of which are tied to improper character evidence and the remainder of which allege some form of hearsay or improper argument.” Gov’t Br. at 33. The trial counsel’s improper examination and argument drew multiple objections, provoked repeated admonitions from the military judge, and required numerous curative instructions to the members.
Appellant alleged “prosecutorial misconduct” at the NMCCA; a term that many judge advocates fear but that CAAF has said means only “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. Edmond, 63 M.J. 343, 347 (C.A.A.F. 2006) (link to slip op.). This definition lacks an element of fault, so even innocent mistakes, simple oversights, or just plain inexperience may result in a trial counsel’s conduct during a particular case meeting the harsh-sounding standard of “prosecutorial misconduct,” even in the absence of malevolent intent. Such appears to be the facts of this case, as the lengthy briefs to CAAF describe an inexperienced and seemingly-incompetent trial counsel whose culpability pales in comparison to her plainly absentee supervisors.
But rather than determine which if any of the trial counsel’s numerous blunders meet this definition of “prosecutorial misconduct,” the NMCCA merely assumed such error and looked instead for prejudice to Appellant. The CCA concluded that “even assuming without deciding that trial counsel’s actions amounted to misconduct, we find no material prejudice to the appellant’s substantial right to a fair trial.” Slip op. at 4. It is this conclusion that Appellant challenges at CAAF.
CAAF’s grant of review seems like a softball to Appellant, whose brief begins with a punishing 21 page statement of the facts of the case that will cause any reader to wince, repeatedly. These facts will likely be the focus of CAAF’s analysis, and this case seems destined for a fact-specific resolution. For example, while Appellant looks past the facts to argue in part that the CCA was wrong to simply assume error and test for prejudice, claiming that “by assuming without deciding, the lower court broadcasts its lack of concern for the issue” (App. Br. at 32), CAAF itself just recently employed this exact technique to find no prejudice in United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). In fact, Judge Stucky’s majority opinion in Halpin explicitly found that “our judgment does not depend on whether any of trial counsel’s sentencing arguments were, in fact, improper.” Halpin, 71 M.J. at 479-480. So it’s unlikely that CAAF granted review of this case so that it could reject an analytical approach it just employed only months earlier. Rather, it’s more likely that CAAF sees potential flaws in the CCA’s finding of no prejudice on the facts.
And there’s good reason to believe that CAAF isn’t alone, as the Government’s brief clocks in at a whopping 64 numbered pages and 13,989 words (of the 14,000 word limit). Moreover, CAAF’s website indicates that the Director of the Navy-Marine Corps’ Government Appellate Division will personally argue the case on the 13th. This strong institutional response in an otherwise minor special court-martial is an indication that the Government sees its own blood in the water. After a year in which the Marine Corps judge advocate community was rocked by scandals such as the Salyer case, the Santiago case, and the LtCol Palmer fiasco, the leadership is rolling up its sleeves and trying to staunch the bleeding.
Evidence of Government desperation is plain in its brief, which goes far beyond the predictable arguments that the facts of this case amount to neither error nor prejudice to Appellant. Boldly, the Government’s brief challenges CAAF to adopt two positions that the court has repeatedly refused to accept: waiver of improper argument under Rule for Courts-Martial 919(c), and the fourth prong of the plain-error test.
R.C.M. 919(c) states that “failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection” (emphasis added). Errors may a be preserved by objection at trial, forfeited by failure to object, or waived, and waiver forecloses appellate review. But CAAF has persistently refused to apply this foreclosure to improper argument by Government counsel, both on findings and in sentencing. For example, there was no objection to the sentencing argument considered by CAAF in Halpin. And a unanimous court joined then-Judge Baker in 2007 when he wrote of a findings argument:
Defense counsel did not object to this line of argument or to the slides. As a consequence, we review the argument of trial counsel for plain error.
United States v. Schroder, 65 M.J. 49, 57 (C.A.A.F. 2007). The Government’s brief does not specifically address any of the precedent that it asks CAAF to abandon, instead merely asserting that “this Court should revisit prior case law to the contrary, apply the plain language of the Rule, and find that Appellant’s failure to contemporaneously object at trial waived this issue.” Gov’t Br. at 36. During oral argument the court will undoubtedly ask Government counsel to explain “why.”
The Government also asserts:
When an appellant satisfies the three-pronged plain error test, an appellate court may discretionarily grant relief if it determines that the error “‘seriously affect(s) the fairness, integrity or public reputation of judicial proceedings.’” United States v. Olano, 507 U.S. 725 (1993) (quoting United States v. Atkinson, 297 U.S. 157 (1936)); United States v. Powel, 49 M. J. 460, 465 (C.A.A.F. 1998).
Gov’t Br. at 41. This is the “fourth prong” of the plain-error test, and it has been vigorously rejected by CAAF in recent months. Just this past May, for example, Judge Erdmann writing for a majority of CAAF emphasized:
We have consistently rejected application of the fourth prong of Olano when addressing questions under Article 59(a), UCMJ, and do not intend to revisit that practice here. Instead, we adhere to our own longstanding precedent on Article 59(a) questions.
United States v. Tunstall, 72 M.J. 191, 197 N.7 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). Last term the court also summarily rejected multiple certified cases from the Air Force that invited the court to adopt the fourth prong. And Judge Stucky, who concurred in Tunstall but would have adopted the fourth prong, quietly abandoned that position just weeks ago as he wrote for the court in United States v. Warner, No. 13-0435/AR, __ M.J. __ (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page) and dutifully applied the three-prong test. But while calling for CAAF to abandon its consistent rejection of the fourth prong, the Government again does not address the significant contrary precedent.
But beyond the calls from both sides for CAAF to reverse itself in ways the court is unlikely to accept, the briefs are lengthy and fact-intensive considerations of the trial counsel’s improper questions and arguments, the military judge’s remedies, and the defense counsel’s objections. Those discussions are just plain difficult to follow without the context of the whole record. But I think that the oral argument on this case will quickly move past the parties’ desire to make new law and focus on the mundane aspects of what happened during the trial and whether the military judge’s instructions were sufficiently curative.
Though there is one potential wildcard: Judge Ohlson. He was most recently Chief of the Professional Misconduct Review Unit in the Department of Justice, and I suspect he will take a dim view of innocent mistakes, simple oversights, or just plain inexperience from a system of prosecutors that represents the same sovereign as the Department of Justice, but fails to live up to its standard.