Opinion Analysis: An unsettled CAAF finds a senior prosecutor’s argument improper but the evidence too strong to warrant reversal in United States v. Sewell, No. 16-0360/AR
CAAF decided the Army case of United States v. Sewell, 76 M.J. 14, No. 16-0360/AR (CAAFlog case page) (link to slip op.), on Wednesday, February 1, 2017. In an opinion that names the trial counsel but avoids direct criticism of his performance, a majority of CAAF finds that the evidence supporting the convictions is sufficient to overwhelm any impropriety in the trial counsel’s closing argument. But a pointed dissent finds serious errors and casts the counsel as a bad role model. CAAF affirms the findings and the sentence and the decision of the Army CCA.
Judge Ryan writes for the court, joined by all but Judge Ohlson who dissents in part.
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 an issue personally asserted by Sewell, alleging prosecutorial misconduct:
Whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings.
The improper argument involved assertions about Sewell’s “criminal disposition or propensity” to which there was a sustained objection and a curative instruction, slip op. at 4-5, other arguments to which there were overruled objections that the majority do not fault, slip op. at 5 n.2, and alleged “improper vouching, references to facts not in evidence, and statements that purportedly inflamed the passions of the panel,” slip op. at 6, to which there was no objection at trial.
In her opinion for the court Judge Ryan finds that “some of trial counsel’s statements during argument were improper,” slip op. at 2, however she concludes that those improprieties were harmless in light of the evidence supporting the convictions:
Even assuming that trial counsel’s misconduct was severe and the military judge’s instructions were insufficient, we find the third Fletcher factor [the weight of the evidence supporting the convictions] dispositive.
Slip op. at 8. But Judge Ryan also identifies the trial counsel by name:
Appellant argues that the trial counsel, Lt. Col. Matthew McDonald, made improper arguments that prejudiced his right to a fair trial.
Slip op. at 4. This is generally considered to be a bad thing for the named attorney. It is also (by my recollection) the first time CAAF has named a trial counsel in connection with an allegation of impropriety since
United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), our #4 Military Justice Story of 2013 Correction: United States v. Stellato, 74 M.J. 473 (C.A.A.F. Aug. 20., 2015) (CAAFlog case page).
Judge Ohlson, however, is even more blunt.
Concurring in part (because he finds some of the convictions amply supported by the introduction of photographic evidence) but otherwise dissenting, Judge Ohlson finds that the trial counsel committed four kinds of prosecutorial misconduct. First, he “improperly used personal pronouns throughout findings argument.” Diss. op. at 2. Second, his “propensity arguments were not fair inferences derived from the trial evidence.” Diss. op. at 2. Third, he “engaged in ad hominem attacks against Appellant.” Diss. op. at 2. And finally, he “made inflammatory statements that were predicated on facts not in evidence.” Diss. op. at 3. On this last point, Judge Ohlson highlights that:
Perhaps most troubling, trial counsel made an inflammatory comment regarding defense counsel. He said: “[T]he defense, they have a good poker face, but we all know there’s not reasonable doubt.” The panel members could reasonably infer from trial counsel’s statement that defense counsel, despite their impassive expressions, knew that their client was guilty. Such an argument is extremely prejudicial to an accused and is patently unacceptable in a court-martial.
Diss. op. at 3 (marks in original).
For all of this Judge Ohlson castigates the trial counsel:
Although there is no basis to believe that trial counsel had any malicious intent in making these improper arguments, I conclude that, taken as a whole, they constituted serious error.
Diss. op. at 4. A footnote adds:
It is notable that the trial counsel in this case was quite senior – he was a lieutenant colonel (O-5) – and was designated as a special victims prosecutor. (Additionally, the record reflects that he previously served as a military judge.) Presumably, a person of that rank and in that position would have received significant training and courtroom experience before prosecuting a case such as this one. And yet, as demonstrated by the above listing of his improper arguments, trial counsel’s performance was quite troubling. It is to be hoped that junior officers in the Judge Advocate General’s Corps who may have viewed trial counsel as a role model will not emulate his trial advocacy techniques in future cases. Indeed, this Court’s customary admonition bears repeating: “Prosecutorial misconduct occurs when trial counsel oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” United States v. Hornback, 73 M.J. 155, 159–60 (C.A.A.F. 2014) (citation omitted) (internal quotation marks omitted).
Diss. op. at 4 n.3 (emphasis added).
The majority affirms the findings and sentence (as modified by the CCA). Judge Ohlson, however, would reverse some of the findings and the sentence, and authorize a rehearing.
• Army CCA’s opinion
• Blog post: Grostefon grant
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis