CAAF will hear oral argument in the Army case of United States v. Short, No. 17-0187/AR (CAAFlog case page), on Tuesday, October 24, 2017, at 9:30 a.m. A single issue questions the propriety of the trial counsel’s closing argument in a case where the defense counsel did not object to the argument, but did make multiple sustained objections during the prosecution’s case:

Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

Sergeant (E-5) Short was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of simple assault and assault consummated by a battery, and was sentenced to a bad-conduct discharge. The convictions were based on allegations of domestic violence by Short of his wife (Short was acquitted of additional allegations), and the prosecution sought to introduce evidence regarding the general nature of the marital relationship. The defense objected and the military judge agreed with the defense, prohibiting the prosecution from eliciting most of its desired testimony.

Despite the military judge’s ruling, however, the trial counsel elicited improper testimony about the relationship. Short’s brief asserts that during the wife’s testimony, “there were six sustained hearsay objections, three sustained leading objections, one violation of the Section III disclosures, one violation of the Mil. R. Evid. 412 ruling, and nine violations of the Mil R. Evid. 404 ruling.” App. Br. at 8. More sustained objections occurred during the testimony of other prosecution witnesses and during cross-examination of defense witnesses. The defense repeatedly requested a mistrial, but those requests were denied. The military judge did, however, give numerous curative instructions.

Then, during closing argument, the trial counsel:

commented to the panel that SGT Short “stared at [Mrs. NS] for the entire afternoon while she gave that testimony.” (JA 446). Counsel then asked the panel to “[i]magine how uncomfortable and how terrifying it was to sit on that stand.” (JA 502).

App. Br. at 11 (marks in original). There was no objection to this argument.

The Army CCA reviewed Short’s case last year, affirming the findings and sentence in a per curiam opinion that is notable in two respects.

First, the CCA limited its review to the military judge’s actions, holding that “as a court of criminal appeals we grade the homework of the trial court, not the trial counsel.” United States v. Short, No. 20150320, slip op. at 3 (A. Ct. Crim. App. Nov. 17, 2016). This seems to run contrary to CAAF’s precedent that “look[s] at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial.” United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)

Second, the CCA reviewed the closing argument, to which there was no objection, for plain error (finding none). This is contrary to a more recent, en banc, decision of the same court holding that the failure to object to improper argument waives any error. See United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here), rev. granted on other grounds, __ M.J. __ (C.A.A.F. Oct. 12, 2017) (noted here). The Navy-Marine Corps court agreed, adopting the Army court’s reasoning on this issue.

Considering this, CAAF’s review will almost certainly reach beyond the facts of this case, touching on both the appropriate scope of a CCA’s review and the standard of review for argument in the absence of an objection at trial.

“Prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon.” United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996). “It is not the number of legal norms violated but the impact of those violations on the trial which determines the appropriate remedy for prosecutorial misconduct.” Id. at 6. Nevertheless, Short’s brief emphasizes the number of violations in this case:

The government counsel’s approximately forty (40) violations of the military judge’s rulings, Military Rules of Evidence, and Rules for Courts-Martial were prosecutorial misconduct. See Hornback, 73 M.J. at 160 (holding persistent and repeated violations of Military Rules of Evidence may constitute prosecutorial misconduct).

This case is worse than Hornback.

App. Br. at 16. In United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), a unanimous CAAF found significant prosecutorial misconduct during the trial, but the court was sharply divided on the question of prejudice and it narrowly affirmed the convictions. But seeking to avoid the same result, Short’s brief focuses on two particular improprieties in the prosecution’s closing argument. First:

The trial counsel improperly commented that during the trial, appellant “stared at [Ms. NS] all afternoon” while she testified. It is impermissible to comment on exercising a constitutional right. . . .

Here, the trial counsel effectively urged the panel to draw a negative inference from appellant’s right to be present during the victim’s testimony. The trial counsel argued “she had to sit in the same room as … the person who beat her. The person who sexually abused her.”

App. Br. at 17-18. And second:

The government erroneously argued the panel should put themselves in the place of the victim while she was reliving and retelling the alleged event. . . .

These arguments were designed for the panel to place themselves in the victim’s shoes while experiencing the alleged humiliation at the time of the charged offenses. Thus, these arguments violated the “Golden Rule.”

App. Br. at 18-19.

The defense did not object to either of these arguments. The briefs were filed before the Army CCA’s decision in Kelly, and so they don’t address whether that failure waived an error from these arguments. Rather, Short’s brief argues that reversal is required because “no amount of curative instructions could have remedied the amount of improper testimony heard by the panel in this case,” App. Br. at 23, and because “even if curative instructions could have cured the misconduct, the measures taken by the military judge in this case fell woefully short,” App. Br. at 24.

The Army Government Appellate Division’s response is short, and broadly argues that the military judge’s curative instructions were an adequate remedy for any improprieties:

While Appellant argues that the military judge’s curative measures were insufficient, the record of trial stands for the opposite proposition. Short of granting a mistrial or holding the prosecution in contempt, the military judge employed multiple and escalating curative measures. . . . Appellant’s claim that the curative instructions were not effective on the panel ignores the record of trial, is contrary to the findings of the military judge, and is unsupported by the mixed findings of the panel, which included several acquittals.

Gov’t Div. Br. at 14-15. As for the prosecution’s closing argument, the Government Division’s brief disagrees that it violated the Golden Rule, Gov’t Div. Br. at 12, but the brief does not address Short’s confrontation argument.

The Government Division’s brief also asks CAAF to defer to the military judge:

While the lower court doubted whether some of the alleged 404(b) violations from Appellant actually ran contrary to 404(b ), it gave deference to the trial judge, who was in the best position to weigh the considerations of Mil. R. Evid. 403. (JA 1-5). Likewise, it gave deference to the trial judge in ruling on Appellant’s motions for mistrial. (JA 4-5). This Court should also give deference to the trial judge, as there is no evidence of abuse of discretion and Appellant has not specified that issue.

Gov’t Div. Br. at 13. A military judge’s ruling on a request for a mistrial is normally reviewed for clear evidence of an abuse of discretion, a deferential standard. United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009). But the granted issue goes beyond the question of whether a mistrial was required. Instead, it focuses on the conduct of the prosecution and whether “the trial counsel’s comments, taken as a whole, were so damaging that [CAAF] cannot be confident that the members convicted the appellant on the basis of the evidence alone.” Fletcher, 62 M.J. at 184.

Short’s reply brief emphasizes this point, linking it to the Army CCA’s decision to review the military judge’s actions rather than the prosecution’s:

the government, like the Army Court, provides no legal support for why previous rulings for mistrial by the military judge binds this Court from reviewing whether the cumulative impact of any violation of legal norms constituted prosecutorial misconduct. . . .

Thus, this Court should decline the government’s request and review the totality of the proceedings for prejudicial error without deference to the military judge’s earlier, narrow rulings.

Reply Br. at 2-3. Short’s reply brief also argues that the relatively-light sentence (a bad-conduct discharge) is evidence of lingering doubt:

Finally, the light sentence supports that the case was a close call, swayed by the improper testimony and argument. The bad conduct discharge in light of the testimony of the victim shows residual doubt by the panel. Critically, had the panel convicted appellant of only some of the offenses and then sentenced him to the maximum punishment, it would be telling of their confidence in the findings. However, in this case, the panel gave only the requested minimum by SGT Short. Thus, the panel could have given a light sentence as a result of residual, lingering doubt regarding the domestic assaults.

Thus, this Court cannot be confident that the panel convicted SGT Short on the basis of the permissible evidence alone.

App. Br. at 8. The Government Division will likely argue the opposite: that a panel improperly influenced to convict will, for the same reason, sentence harshly.

Between the standard of review, the adequacy of the curative instructions, and the weight of the evidence supporting the convictions, there’s a lot of material for CAAF to discuss during next week’s oral argument. But Short’s counsel likely face an uphill battle, as CAAF often finds highly-improper conduct by military prosecutors to be harmless. Last term, for example, it found no prejudice from improper argument in Pabelona and Sewell, and it reached the same conclusion in the 2013 term in Frey and Hornback. That’s something of a trend. If Short’s counsel want to reverse that trend and his convictions, they will have to convince CAAF that his case is different.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) answer
Appellant’s reply brief
Blog post: Argument preview

17 Responses to “Argument Preview: Whether prosecutorial misconduct requires reversal (and how to review it) in United States v. Short, No. 17-0187/AR”

  1. k fischer says:

    So, I’d like to know exactly what the MJ had in mind when he said, “[i]f I have to redress this again–well I’m not going to tell you what–but, I’m just giving you one–this is your last warning, Government?”
    Because the Government apparently committed another Section III disclosure violation and got in 412 evidence that violated the MJ’s ruling.  And, the MJ just gave another curative instruction instead of ordering a mistrial like the DC requested. Plus, the TC even admitted that after receiving the MJ’s ruling that he/she failed to instruct the witness about the ruling after which he requested a recess to inform the witness of the MJ’s ruling mid-trial and mid-direct examination.  That would have ground my gears if a TC or DC told me, “Well, I really did not instruct the witness about your ruling.”
    And the curative instructions really only highlight that (a) there was misconduct and (b) that the Government screwed up and failed to charge it.  
    Sounds like Mrs. Short could have had a Borderline Personality Disorder and could have made a false allegation after she was served with divorce papers because Brian was sick of her abuse.  If any of that is true and I were Brian being retried, I’d get a forensic shrink to review her behavior history to see if she had the specific traits of a BPD.

  2. Philip D. Cave says:

    Kyle, this actually is fairly common–unfortunately.

     “Well, I really did not instruct the witness about your ruling.”

  3. Bill Cassara says:

    I am reminded of Judge Ryan’s comment during argument last week on the equivalency of a trial counsel vs. a U.S. Attorney, and I paraphrase:  “You mean someone who has been certified by the Attorney General vs. someone two years out of law school?” 

  4. k fischer says:

    And, LTC Fischer’s response would be, “Why not? Why didn’t you instruct the witness that she was prohibited from discussing these specific instances that the Defense took the time to file a motion to have suppressed, and I took the time to make a specific ruling after we took the time to have a hearing where the Defense’s motion was granted and your claim of relief was denied?”  To me, that is an admission of willful disregard to the MJ’s ruling and the ultimate foxtrot yankee.
    (btw, my response would have been the same if Defense counsel had disregarded my ruling on a 412 motion.  Oh, had I only stayed in……)

  5. k fischer says:

    Better yet, before each 120 trial where I have granted a defense motion in limine, I’d send my ruling to the SVC and tell them to instruct their client to not bring up the suppressed evidence and if they do then I could, inter alia, grant a mistrial and dismiss the charges with prejudice.

  6. Zachary D Spilman says:

    The problem here is the defense request for a mistrial (and seemingly nothing else). Sure, this probably deserved a mistrial. But they should have made some alternative requests like:

    • End the direct examination of the alleged victim;

    • Preclude the prosecution from calling any more witnesses in its case-in-chief;

    • Preclude the prosecution from cross-examining defense witnesses, including the accused (if he elects to testify);

    • Preclude the prosecution from presenting a case in rebuttal;

    • Preclude the prosecution from making closing argument;

    • If the accused is convicted of any offense, preclude the prosecution from offering any evidence or argument in sentencing; and

    • Instruct the members that the prosecution disobeyed an unambiguous ruling of the court-martial, that such conduct is an indication of the weakness of the prosecution’s case, and that a trial counsel would not do something like that absent true desperation.

  7. K fischer says:

    Do you have a citation for that last prayer for relief on your list?

  8. Zachary D Spilman says:

    Nope. The case was an acquittal. 

    So much good trial work, so few transcripts…

  9. Philip D. Cave says:

    Agree with Zach’s list of alternatives when the MJ denies a 915 motion.
    Like Kyle, I’m fairly certain an MJ would not engage in such an instruction to the members on the merits of the evidence.  That’s too close to a directed acquittal which you might find in British courts, but not here.  All of the other remedies are well within the MJ’s remit to ensure a fair trial and also take alternative actions for what appears to be a consistent course of behavior.
    When the government says that it was inexperience, not malice, cite United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003) and Smith v. Phillips, 455 U.S. 209 (1982) (“touchstone of due process analysis in cases of prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.”  Courts should gauge the overall effect of counsel’s conduct on the trial, and not personal blameworthiness.).

  10. Charlie Gittins says:

    I was successful in getting the Chief Army Trial Judge to give an instruction similar to Zack’s last alternative in United States v. Sergeant Major of the Army McKinney.  GOV failed to disclose evidence specifically requested in a discovery request.  I caught them and could prove it.  The Military Judge instructed the members that the GOV committed prosecutorial misconduct, that it hampered the defense and the members were free to consider the Government’s wrongful conduct in deciding whether the GOV had proved it’s case.  Three prosecutors sat there flabbergasted.  Of course, by then, the GOV crew had demonstrated a willingness to play fast and loose with the rules and the Judge was on to them.  We used this instruction in closing to good effect along with some other tidbits. 

  11. k fischer says:

    Like Kyle, I’m fairly certain an MJ would not engage in such an instruction to the members on the merits of the evidence.  

    Hey!  Speak for yourself, Bromigo. ; ^ )
    I just wanted the citation, so I could use it in my next case, but I see that instruction was a Z-riginal.  

  12. Just another jag says:

    I’m blown away the government is trying to claim inexperience here. The lead TC was brand new but the ATC was a mobilized reservist who is a prosecutor on the civilian side. He’s the one who got chewed out in the judge’s chambers.

  13. Dynamite says:

    Just another jag,
    If that is true, that is explosive stuff…has that tidbit been briefed on appeal by the defense?

  14. Zachary D Spilman says:

    The experience of the trial counsel generally doesn’t matter.

    [T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Accordingly, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.  

    United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003) (quoting Smith v. Phillips, 455 U.S. 209, 219 (1982)).

  15. k fischer says:

    Just another jag, 
    I stand by the position that most folks are doing their best and when given the choice between a person making a simple mistake and maliciously intending to violate the Accused’s right to a fair trial, I will choose the former rather than the latter.
    So, perhaps the ATC, while more experienced and a prosecutor on the civilian side, was simply not paying attention when the Military Judge sua sponte called a 39(a), made everybody in the Courtroom stand, made all the panel members leave the courtroom, and gave the TC and the Government his “last” warning.

  16. Just another jag says:

    It is true, I was there. I don’t remember if I read it in the brief, but that’s what happened when the judge ordered everyone back to his chambers during the CW’s direct. The ATC has a lapel mic on and forgot to switch it off. My understanding is that in the gallery you couldn’t hear what the judge was saying but you could hear the ATC saying “yes sir, yes sir, yes sir” in response. I can’t recall how the judge described that 802 on the record once he reconvened, but that’s the only time I’ve ever seen that judge yell at anyone. Like, veins popping, red-faced, yelling.
    There was nothing malicious about either of the TCs in the case other than an apparent lack of understanding that justice is a process and not a result. But that’s not uncommon amongst MJ practitioners today.

  17. SAG says:

    I’m blown away the government is trying to claim inexperience here.

    Citation please.