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.

Case Links:
Army CCA’s opinion
Blog post: Grostefon grant
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

4 Responses to “Argument Preview: Prosecutorial misconduct returns to CAAF in United States v. Sewell, No. 16-0360/AR”

  1. k fischer says:

    I was a TDS Attorney when this particular SVP was litigating courts-martial as a Major-ranked COJ at Ft. Benning between ’05 and ’07.  The SJA’s office was quite aggressive.  Theirs was a lawyer driven system that acted like a DA’s office where the trial counsel would prefer charges as accusers, then run the packet up the chain of command.  The GCMCA was just a paper signer.  When I think about what Senator Gillibrand envisions with the UCMJ, I think of that office.  They were highly effective in moving cases.  I will read the opinion with great interest.

  2. Zachary D Spilman says:

    Trial counsel would prefer charges, you say? As the accuser, you say?

    So much for R.C.M. 502(d)(4), MCM (2005 Ed.) (link):

    (4) Disqualifications. No person shall act as trial counsel or assistant trial counsel or, except when expressly requested by the accused, as defense counsel or associate or assistant defense counsel in any case in which that person is or has been:

    (A) The accuser;

    (B) An investigating officer;

    (C) A military judge; or

    (D) A member.

    No person who has acted as counsel for a party may serve as counsel for an opposing party in the same case.

  3. k fischer says:

    Right.  There were five or six TC’s at Benning who tried cases, including the COJ.    I was talking about how other TC’s with other units would prefer for each other.  It could have created a problem when some in the office PCS’d and the accuser was the Senior TC. We actually brought that up one time when one of the assistant TC’s had preferred charges, so they brought in another potted plant.
    It’s not a technique I normally saw across the Army, and it wasn’t how I was taught.  But, there wasn’t a glaring reason why one could not conduct Justice at the OSJA.  You just had to track who the accuser was and make sure they weren’t needed to act as a second chair.

  4. Vulture says:

    I thought that pictures on the phone meant that there where pictures on the computer.  At least that’s what they are saying across the hall.  TC was right, if it was only one instance of misconduct then it would be doubtable.  But it isn’t really that way is it?  Government goes of the deep end repeatedly.