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.