Yesterday CAAF granted review in a Navy case:

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

PROSECUTORS MUST ACT WITHIN THE BOUNDS OF PROPRIETY. HERE, IN FRONT OF MEMBERS, THE PROSECUTOR EXPRESSED HIS OPINION OF APPELLANT INCLUDING, “I THINK HE’S AN IDIOT,” OPINED ON DEFENSE-FRIENDLY EVIDENCE, CHARACTERIZED APPELLANT’S STATEMENTS AS “RIDICULOUS,” VOUCHED FOR GOVERNMENT-FRIENDLY EVIDENCE, DIAGNOSED APPELLANT AS SCHIZOPHRENIC, ASKED MEMBERS TO DISREGARD DEFENSE ARGUMENTS, AND TOLD MEMBERS THAT APPELLANT “SLEEPS IN A BED OF LIES.” WAS THIS PLAIN ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found error but not plain error that some of the comments were not improper and others were not plain error (the defense did not make a timely objection).

My notes indicate that this is the first prosecutorial misconduct case of the term. Government bloopers were our #2 Military Justice Story of 2015.

16 Responses to “CAAF grants review of prosecutorial misconduct (improper argument) issue”

  1. The Silver Fox says:

    They should add this to the issue:  “Was trial defense counsel ineffective?”

  2. Burt Macklin says:

    Who is responsible for this dumpster fire writing on the granted issue?  Did Navy Appellate Defense draft it like this?  Or was this from CAAF?  “PROSECUTOR SUGGESTED UNICORNS WERE NOT MAGICAL.  IS PROSECUTOR WORSE THAN HITLER?”
    Additional thoughts in no particular order: 
    1.  I’m pretty sure TC was ripping off Cartman in his “bed of lies.”  See:  “Oh boy Kyle, you just made a huge withdraw at the First Bank of Lies.” 
    2.  It is plain error to use metaphor?
    3.  No IAC for the trial defense counsel that was apparently playing Candy Crush on his phone during closing?

  3. The Silver Fox says:

    In other news, a CDC got held in contempt, and AFCCA essentially says they would have done the same thing:  http://afcca.law.af.mil/content/afcca_opinions/cp/marsh-38688.u.pdf

  4. Burt Macklin says:

    Silver Fox – I feel like you missed an easy one here. “Civilian defense counsel held in contempt for sleeping in a bed of lies.”

  5. Zachary D Spilman says:

    That case is in my stack, The Silver Fox. I just haven’t had the time to give it more attention.

    Working on it now, however, for you.

  6. The Silver Fox says:

    Much obliged, ZS.  U.S. v. Marsh challenge for the regular commenters:  Find a way to blame the government.  And, go…

  7. stewie says:

    I tended to go with Angry Birds myself when I was defense counsel.

  8. Greg Young says:

    I think it’s worth noting that NMCCA did not find error.  They said, if there was error, it wasn’t plain error.  From the tone of the opinion, especially the part about calling appellant a liar, I get the sense they weren’t too concerned.

  9. Zachary D Spilman says:

    Thanks Greg Young. I’ve updated the post to accurately reflect the CCA’s holding. 

  10. Zeke Kennen says:

    They should add this to the issue:  “Was trial defense counsel ineffective?”

    I don’t know, The Silver Fox, if the granted issue is true, then I’m not sure it is a fruitful exercise for us to question whether the executive branch lawyer who was detailed to defend the accused should have stopped the executive branch’s prosecutor from turning that executive branch trial into a circus.  I wonder whether it might be equally useless to question whether the executive branch lawyer who was detailed to preside over that executive branch trial should have sua sponte prevented the other executive branch lawyers who were litigating that case from running it off the rails.  If there’s some meaningful distinction to be drawn between those executive branch lawyers and their respective executive branch roles in that executive branch trial, I’m having a hard time seeing it.  It seems to me that, however you cut it and whoever you choose to blame, it’s still a failure of the executive branch to provide the accused due process of law.  Perhaps the legislative branch judges on CAAF will be able to find a distinction, though.  We’ll have to see.  Conspicuously missing from all of this is a single soul from the judicial branch – you know, the branch constitutionally and traditionally responsible for interpreting and applying the law and protecting the rights of the accused.  Maybe, at it’s root, that’s the problem.  The founders seemed to think there was some value to having a separation of powers.  But, I’m sure we know better.

  11. Philip Cave says:

    Trial counsel argument that is so improper as to constitute plain error, MJ has obligation to stop argument sua sponte.  U.S. v. Thompson, 37 M.J. 1023 (A.C.M.R. 1993).
     
    I’d start here Zeke.

  12. The Silver Fox says:

    Zeke:  I don’t follow your separation of powers argument.  Didn’t “the founders” vest power to “raise and support Armies,” “provide and maintain a Navy,” and “To make Rules for the Government and Regulation of the land and naval forces” in the Congress?  See Art. I, sec. 8.  Were “the founders” that concerned about treating the military differently when they ratified that Fifth Amendment, which specifically exempts the military from the grand jury requirement?  See U.S. Const. amend. V.  The only court “the founders” created in the Constitution was the Supreme Court–an Article III court–which, incidentally, military members can potentially have access to if their case is decided at CAAF.  “Power” is dispersed over at least two branches, and, in some circumstances, it can be all three.     

  13. Vulture says:

    …, when in actual service in times of war or public danger, …
     

  14. The Silver Fox says:

    “In courts-martial, there is no right to indictment by grand jury.”  United States v. Easton, 71 M.J. 168, 175 (C.A.A.F. 2012).  “In addition, there is no Sixth Amendment right to a trial by jury in courts-martial.”  Id.  (citing Ex parte Quirin, 317 U.S. 1, 39 (1942); United States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 2002)).

  15. Vulture says:

    US Military servicemen and women.  An amount in controversy for only $19.99.

  16. k fischer says:

    The Silver Fox,
     
    “For the trial counsel to point out the appellant’s dishonesty during closing arguments was hardly overly inflammatory. We find that the trial counsel’s comments were based on a fair reading of the record as it related to proof of these charges, all involving deceit or dishonesty. We therefore find that if the trial counsel’s comments were error, they do not rise to level of plain error.
     
    I don’t anyone should be blamed.  I agree with the analysis of the CCA on this one.  If the theme of the case is one of dishonesty either in the charges or in the defense, then why shouldn’t counsel be permitted to call the accused a liar?
     
    How many cases of false sexual assault allegations do we see where there is a motive to fabricate?  I welcome this opinion.  The next lying victim I encounter, (for instance how about that recent acquittal down at Macdill AFB where the vic stated that she got on top of the accused who was “raping” her, just so she could “get it over with;” who is the brain trust that allowed that garbage to proceed to a GCM?), I will now be permitted with impunity to wag my finger at the so-called vic and shout “LIAR” like Miracle Max’s crone of a wife Valerie.  And in response to the SVP’s objection, I will simply invoke, “Pabelona, your Honor!”
     
    And, when the MJ overrules the SVP’s objection, I suppose I can quickly add, “I mean, you’d have to be an idiot to argue that a LIAR like that (finger still wagging) can be believed beyond a reasonable doubt.”
     
    Am I right?