CAAF decided the Marine Corps case of United States v. Hornback, No. 13-0442/MC, 73 M.J. 155 (CAAFlog case page) (link to slip op.), on Thursday, March 6, 2014. The court “hold[s] that significant prosecutorial misconduct occurred, but that the error was ultimately not prejudicial,” affirming the judgment of the NMCCA and Appellant’s convictions. Slip op. at 1. But while CAAF is unanimous in its finding of error, it is sharply divided on the question of prejudice.
Judge Stucky writes for the majority. Chief Judge Baker and Judge Ohlson both dissent. Each writes separately, with the Chief Judge also joining Judge Ohlson’s separate opinion.
CAAF granted review of this case to determine:
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.
But throughout the trial, “trial counsel repeatedly and persistently elicited improper testimony, despite repeated sustained objections as well as admonition and instruction from the military judge.” Slip op. at 13. The counsel is not identified by name (though, curiously, many of the witnesses are). But Judge Stucky dedicates 11 pages of his 18-page opinion of the court to a punishing account of the prosecutor’s failings. The conclusion he draws from these failures is a mixed-bag:
It matters not that trial counsel seems to have been merely inexperienced, ill prepared, and unsupervised in this case. Although one may wonder what her supervisors were doing during the course of Appellant’s trial, the prosecutorial misconduct inquiry is an objective one, requiring no showing of malicious intent on behalf of the prosecutor, and we find none here.
Slip op. at 14. However, turning to the question of whether this misconduct denied Appellant a fair trial, Judge Stucky gets more explicit:
The prosecutorial misconduct in this case was sustained and severe. Trial counsel attempted to elicit improper testimony from nearly every witness called during the Government’s caseiin-chief, and made arguably improper argument during her closing argument. She repeatedly appeared unable to either understand or abide by the military judge’s rulings and instruction during the two-and-a-half day trial on the merits.
Slip op. at 15. But the trial counsel’s apparent inability to “understand or abide” isn’t enough to win Appellant relief.
The test for prejudice in a case like this is drawn from United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005), and involves a 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.” Slip op. at 13 (quoting Fletcher, 62 M.J. at 184). Unsurprisingly, the majority finds that the first factor weighs in Appellant’s favor. However, Judge Stucky explains that the second two factors, and the balance of the analysis, are in favor of the Government.
First, the rather extraordinary curative measures employed by the judge weigh heavily:
the military judge appears to have left no stone unturned in ensuring that the members considered only admissible evidence in this case. He called multiple Article 39(a), UCMJ, sessions to prevent tainting the panel. He issued repeated curative instructions to the members, each time eliciting that they understood and would follow his instructions. He also issued 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. The military judge acted early and often to ameliorate trial counsel’s misconduct.
Slip op. at 15. Next, Judge Stucky explains that the Government’s evidence of the larceny and false official statement was strong, and that “the evidence supporting the spice conviction was not as strong as that supporting the larceny and false official statement convictions, but it was substantial.” Slip op. at 17. And so, “Balancing these factors, we are confident that the members convicted Appellant on the basis of the evidence alone. The Appellant was not prejudiced by trial counsel’s misconduct in this case.” Slip op. at 18.
But Chief Judge Baker and Judge Ohlson differ “on the question of whether the trial counsel’s ‘significant,’ ‘repeated,’ ‘pervasive,’ ‘sustained,’ ‘persistent,’ and ‘severe’ misconduct materially prejudiced Appellant’s right to a fair trial. [We] believe it did.” Ohlson, J., diss. op. at 1 (joined by Baker, C.J.). Footnotes in each of the dissenting opinions raise the obvious questions about supervisory counsel:
It is hard to find fault with the military judge’s actions, especially in the absence of a motion for a mistrial. However, this case does prompt the question: at what point should a military judge sua sponte declare a mistrial or call in the supervising trial attorney?
Baker, C.J., diss. op. at 3 n.1. And:
The nagging –– if unspoken –– question in this case is, “Where was the chief of justice?” As noted by the majority, trial counsel appeared to be not only “inexperienced” but also “unsupervised,” and she “repeatedly appeared unable to either understand or abide by the military judge’s rulings and instructions.” The issue of why this trial counsel did not receive the level of supervision, guidance, assistance, instruction, and training that she so obviously needed is not a matter before this Court. However, I find it appropriate to note that the responsibility to protect a servicemember’s constitutional right to a fair trial does not rest solely with the lone trial counsel advocating in the courtroom; it extends to the chief of justice and to other supervisory officers as well.
Ohlson, J., diss. op. at 2-3 n.1.
Between these footnotes in the dissents, and the majority’s query of “what her supervisors were doing during the course of Appellant’s trial,” the role (and perhaps culpability) of supervisory counsel certainly has the court’s attention. It didn’t lead to relief for this appellant, against whom the evidence was strong and for whom the sentence was relatively light, but a weaker case will likely lead to a very different result.