Argument Preview: Prosecutorial misconduct returns to CAAF in United States v. Sewell, No. 16-0360/AR
CAAF will hear oral argument in the Army case of United States v. Sewell, No. 16-0360/AR (CAAFlog case page), on Wednesday, October 12, 2016, at 9:30 a.m. The case presents a single issue – raised personally by the appellant – asserting improper closing argument by trial counsel:
Whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings.
Sergeant Sewell was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of six specifications of indecent conduct and one specification of assault with intent to commit rape. He was sentenced to confinement for one year, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA granted one month of confinement credit for dilatory post-trial processing but otherwise approved the findings and sentence without further discussion. CAAF then granted review of the prosecutorial misconduct issue that was personally asserted by Sewell (discussed here).
The trial counsel was a lieutenant colonel certified as an Army special victim prosecutor. The asserted prosecutorial misconduct includes using the term rape when questioning a witness, using the terms I and we more than 75 times during argument, and giving personal opinions about the truthfulness of an alleged victim and of Sewell during a recorded pretrial interrogation. App. Br. at 3-4. Sewell’s brief also discusses trial counsel’s argument that Sewell was a bad person. The military judge ruled that this argument was improper (after a defense objection) but did not grant the defense motion for a mistrial. App. Br. at 5.
Sewell’s brief characterizes trial counsel’s argument in three ways: As a direct violation of the military judge’s pretrial rulings limiting the use of non-propensity 404(b) evidence (App. Br. at 11); as improper vouching and the improper expression of personal beliefs (App. Br. at 14), and; as based on facts not in evidence and designed to inflame the passions of the members (App. Br. at 16).
The Government’s brief offers a mediocre defense of the prosecutor’s comments, asserting that “the trial counsel’s argument in this case was largely proper and any error did not rise to plain error that prejudiced appellant.” Gov’t Br. at 9. The argument, however, primarily rests on a pair of bald assertions that certain aspects argument of the argument were fair:
Appellant now alleges the following comments were also improper: “the old dirty man,” “we have higher standards,” and “young females in the military are preyed upon.” (JA 148-149). These comments are subject to the plain error analysis because there was no objection at trial. In these instances, the statements are not error because they were a fair comment upon the evidence. The government was permitted to argue that appellant preyed upon junior enlisted soldiers and these comments were directly related to the fact that he abused his position of seniority and trust to take advantage of them.
Additionally, appellant alleges the statement, “something’s wrong with him” was error. This comment, also subject to the plain error analysis, was not error because it was a fair comment upon the evidence because there were multiple specifications regarding indecent conduct over a period of nine months. Contrary to appellant’s argument, it did not leave the panel with the impression that appellant had a medical diagnosis that made him dangerous to the public.
Gov’t Br. at 10.
The Government escaped last term without any significant prosecutorial misconduct decisions from CAAF. It certainly needed that break after the thumping it took during the two terms before, in cases that made Government bloopers our #2 Military Justice Story of 2015 and prompted me to respond to growing calls for severe sanctions for military prosecutors who cross the line.
We all justifiably “place great confidence in the faithful execution of the obligations of a prosecuting attorney.” United States v. Solivan, 937 F.2d 1146, 1150 (6th Cir. 1991). It seems, however, that military prosecutors are still pushing the limits of propriety.