When a prosecutor commits persistent and severe misconduct, are a judge’s curative instructions insufficient to neutralize the misconduct (as the Eleventh Circuit has held) or do the instructions remain an effective antidote (as the U.S. Court of Appeals for the Armed Forces has held)?
Page 21 of the brief takes something of a shot at the NMCCA:
On appeal, the U.S. Navy-Marine Corps Court of Criminal Appeals (N-M.C.C.A.) affirmed. The opinion is reproduced at App. 31a. Adopting a laissez-faire approach to prosecutorial misconduct, that court assumed without deciding that it occurred. It then tested for prejudice and found no harm.
Of the Eleventh Circuit, pages 23-24 of the brief explain:
Nearly sixty years after Berger, the U.S. Court of Appeals for the Eleventh Circuit addressed a similar, persistent form of prosecutorial misconduct. See generally United States v. Crutchfield, 26 F.3d 1098, 1100 (11th Cir. 1994) (observing a record “replete with examples of unquestionable prosecutorial misconduct.”). The prosecutor there, as in Petitioner’s case, engaged in “[s]everal lines of questioning” that elicited irrelevant and improper character evidence. Id. Also there, like here, “the record reflect[ed] numerous instances in which the prosecutor simply ignored the court’s rulings on relevancy and improper character evidence objections.” Id. at 1102. Consistent with Berger’s special concern for persistent misconduct, the Eleventh Circuit opined that “[w]hen improper inquiries and innuendos permeate a trial to such a degree as occurred in this case, we do not believe that instructions from the bench are sufficient to offset the prejudicial effect suffered by the accused.” Crutchfield, 26 F.3d at 1103 (emphasis added). Concluding that “a jury cannot always be trusted to follow instructions to disregard improper statements[,]” id. (citing United States v. McLain, 823 F.2d 1457, 1462 n.8 (11th Cir. 1987)), the Eleventh Circuit then reversed and remanded for a new trial.
Of CAAF’s decision, page 26 of the brief outlines a moral hazard:
[T]he [CAAF] majority ultimately returns to the curative instructions, underscoring their dispositive nature. Id. at 161. (“[T]he 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.”). *FN 8.
*FN 8: In so finding, the lower court sends an unfortunate message to prosecutors; namely, these improper tactics are worth employing in a weak case. By eliciting improper evidence and making improper argument, prosecutors can turn a total acquittal into a partial one, understanding that result weighs in favor of affirmance on appeal. This danger is real, as the prosecutor here sought to admit improper evidence, arguing to the judge that it was found “to be harmless beyond a reasonable doubt after the appellate court looked at that.” App., infra, 41a. Putting a stop to this unfortunate message supplies an additional reason for this Court to grant this important petition.
And on page 30 is a direct appeals for SCOTUS to exercise its supervisory power:
This case is therefore especially worthy of this Court’s supervisory power because it not only exhibits persistent misconduct, it exhibits a form of misconduct that is anathema to our legal system. As the United States Navy Board of Review once opined, “A studied effort to arouse passion and prejudice is characterized by repeated and persistent asking of improper questions to which the objections of the defense have been sustained.” United States v. Stockdale, 13 C.M.R. 540, 543 (N.B.R. 1953) (citing Beck, 33 F.2d at 114).
Prosecutors play a central role in the criminal justice system. That system will fail if prosecutors are not held to a high standard of integrity.
The brief ends by highlighting two special reasons the Court should grant the petition. First, on page 32, the brief explains:
[A]ll parties—including the court below—agree this prosecutor committed severe misconduct. The United States conceded misconduct at oral argument before the C.A.A.F, and the C.A.A.F. found accordingly.
Then, on page 34, the brief explains that:
The second good reason why Petitioner’s case presents an ideal, uncluttered vehicle for review is preservation. As detailed in the statement of the case, supra, the trial defense attorney preserved this issue, having lodged no less than fifteen objections to the prosecutor’s offensive misconduct. And those instances of misconduct that did not trigger a defense objection were still preserved by the trial judge, who, on several occasions, interrupted the prosecutor sua sponte to try to right her wayward ways.
Whether the Court calls for the views of the Solicitor General remains to be seen.