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