Argument Preview: Considering whether opinions are different from observations and commentary in United States v. Pabelona, No. 16-0214/NA
CAAF will hear oral argument in the Navy case of United States v. Pabelona, No. 16-0214/NA (CAAFlog case page), on Wednesday, October 12, 2016. The case is the second of two scheduled arguments that day, both of which involve issues of improper argument by military prosecutors (the other case is United States v. Sewell, No. 16-0360/AR (CAAFlog case page)). In Pabelona CAAF granted review of 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?
Chief Hospital Corpsman (E-7) Pabelona was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of larceny and signing a false official statement. The convictions related to a so-called sham marriage (a marriage for the purpose of receiving military dependent benefits). Pabelona was sentenced to confinement for 60 days, restriction for 60 days, reduction to E-5, total forfeitures, and a fine of $60,000 (with a contingent 16 months of additional confinement as an enforcement provision). After considering numerous problems with the post-trial processing of Pabelona’s case the NMCCA affirmed the findings and only so much of the sentence as provides for confinement for 60 days, reduction to E-5, total forfeitures, and a fine in the amount of $29,529.64.
The CCA also considered whether the trial counsel disparaged Pabelona or injected his personal opinions in closing argument, and concluded that some of the comments were not improper and others were not plain error (defense counsel did not make a timely objection). CAAF then granted review.
In a series of tables of quotations with citations to the record, Pabelona’s brief itemizes dozens of distinct instances during closing argument, rebuttal argument, and sentencing argument that Pabelona claims were improper injections of trial counsel’s personal opinion into the case, were improper vouching for prosecution evidence, were personal attacks on Pabelona, and argued facts not in evidence. App. Br. at 3-7. The sheer volume of the comments is breathtaking, particularly considering the failure of defense counsel to object.
The Government, however, concedes no error:
When considering Trial Counsel’s comments in context and in light of the evidence presented at trial, there was no prosecutorial misconduct. Appellant’s theory of the case was that the United States had no evidence that he had the requisite intent to enter a fraudulent marriage at the time of the marriage. Appellant’s own counsel stated that “I’m going to tell you what actually happened based upon the facts we saw” and that he was “going to talk about what the government is alleging and how that really doesn’t make sense with the facts.” (J.A. 120.) The arguments of the United States were not Trial Counsel’s personal opinions of Appellant, Appellant’s counsel, or evidence presented favoring either side, but rather were observations and commentary regarding the evidence presented.
Gov’t Br. at 11-12 (emphasis added). By asserting a substantive difference between opinions on one hand and observations and commentary on the other, the Government practically begs CAAF to distinguish the two.
Pabelona’s reply brief highlights, however, the personal nature of trial counsel’s argument:
The Government argues that the “arguments of the United States were not Trial Counsel’s personal opinions . . . .” But this flies in the face of what the trial counsel said on the record. For example, he stated, “I want to make one thing perfectly clear for the record, I don’t think the accused is a mastermind at all. I think he’s an idiot, and that’s why he got caught, and he’s also a con artist and this is his last con.” Other examples are when the trial counsel said, “that doesn’t sound cooperative to me,” “but I think it’s pretty obvious that . . . .” and “I didn’t hear any reasonable doubts.”
And lest his attempts to convey his opinions to the members were not clear, the trial counsel brought it home with these concluding comments:
There’s a couple of things I guarantee you’ll hear . . . ‘The government is inhuman.’ ‘They’re just monsters,’ right? We’re just monsters. Well, look, this is me. Right? Not a monster.
Reply Br. at 5-6 (emphases added) (marks omitted).
Trial counsel are prohibited from offering personal opinions as they become “a form of unsworn, unchecked testimony and tend to exploit the influence of [the] office.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980)). When a trial counsel employs personal pronouns in argument and uses himself to personify the Government, it’s easy to characterize the result as an exploitation of the office of trial counsel to convey a personal opinion about the evidence.
CAAF’s decision in this case will likely clarify when and how the line between fair comment and exploitation of the office of trial counsel is crossed.