Opinion Analysis: A sharply divided CAAF finds no prejudice from a trial counsel’s misconduct, in United States v. Short
CAAF decided the Army case of United States v. Short, 77 M.J. 148, No. 17-0187/AR (CAAFlog case page) (link to slip op.), on Friday, January 5, 2018. Reviewing various improprieties by the prosecution that prompted the defense to request a mistrial three separate times, CAAF concludes that those requests were properly denied because the trial counsel’s misconduct was not so severe that curative instructions were inadequate. But two judges dissent and would reverse the findings, concluding that the misconduct was severe, the instructions ineffective, and the evidence underwhelming.
Chief Judge Stucky writes for the court, joined by Judge Ryan and Senior Judge Erdmann. Judge Ohlson dissents, joined by Judge Sparks.
CAAF granted review to determine:
Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.
“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. “In analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Rodriguez-Rivera, 63 M.J. 372, 378 (C.A.A.F. 2006) (marks and citation omitted). “[P]rosecutorial misconduct by a trial counsel will require reversal when 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.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)).
Sergeant (E-5) Short was accused of domestic violence against his wife. 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 and prohibited the prosecution from eliciting most of its desired testimony. But the trial counsel offered it anyway, over and over again. “To combat [that] improper testimony, the military judge took strong and repeated corrective action . . .” Slip op. at 3. That action included rebuking the trial counsel, warning the witnesses, and giving the members “several curative instructions which addressed the majority of Appellant’s sustained objections regarding M.R.E. 404(b).” Slip op. at 3.
The defense wasn’t satisfied, and so defense counsel requested a mistrial on three separate occasions. All were denied. Short was then convicted of three specifications of assault consummated by a battery and one specification of assault, and sentenced to a bad-conduct discharge.
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). That 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.” Fletcher, 62 M.J. at 184.
Second, the CCA reviewed the closing argument, to which there was no objection, for plain error (finding none). That is contrary to more recent decisions of the CCA holding that the failure to object to improper argument waives (extinguishes) any error. CAAF has granted review of that specific issue in three such cases: first in Marcum, then in Burris and Kelly (the last as a Marcum trailer).
The issue before CAAF – whether the trial counsel committed prosecutorial misconduct – seems to implicate these two holdings. Chief Judge Stucky’s opinion of the court, however, pretty much avoids them both. First, he starts the opinion with language that seems to address the CCA’s first holding (requiring review of the judge’s ruling, not the trial counsel’s conduct), writing that:
the proper focus of our review is on whether the military judge abused his discretion by failing to grant Appellant’s three motions for a mistrial.
Slip op. at 1. But the standard actually applied by the majority focuses primarily – and in a very familiar way – on the severity of the trial counsel’s misconduct (and not the judge’s ruling on the mistrial requests):
Trial counsel’s conduct was not so prejudicial that the curative instructions were inadequate, and there is simply “no evidence here that the members failed to comply with the military judge’s [curative] instructions” when convicting Appellant.
Slip op. at 6 (quoting United States v. Hornback, 73 M.J. 155, 161 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page)).
Second, Chief Judge Stucky and the majority functionally conclude that the trial counsel’s argument (that the CCA reviewed for plain error) was not improper:
With regard to the allegedly improper arguments Appellant now challenges, we note that the perceived errors were so slight that both defense counsel and the military judge failed to recognize them, indicating that neither saw the need for remedial measures at all.
Slip op. at 7. Whatever that is, it’s not a finding of waiver.
None of this excuses the trial counsel’s conduct, and Chief Judge Stucky bluntly declares that:
trial counsel’s conduct left much to be desired
Slip op. at 5. But that’s not enough to convince the majority that reversal is required. Put differently, Short “simply cannot show that, in light of the military judge’s curative instructions, the members would not be able to put aside the inadmissible evidence. Appellant also cannot show that he was prejudiced by trial counsel’s arguments.” Slip op. at 5. That’s a straightforward no-harm-no-foul holding.
But the dissenters aren’t so confident.
Judge Ohlson writes:
[T]here is a point at which prosecutorial misconduct is so pervasive that instructions from the bench are insufficient to counter the prejudicial effect to the appellant. In other words, at some juncture multiple “limiting instructions” can no longer be considered “curative instructions.” That point was surpassed in this case.
Diss. op. at 4 (emphasis in original). Judge Ohlson’s dissenting opinion excoriates the prosecution’s conduct, though he concludes that “it appears from the record that inexperience rather than guile was the genesis of the repeated problems that arose in this case.” Diss. op. at 3. But he details some cringeworthy moments, including:
Testimony about the last [uncharged] incident—where Appellant allegedly put his hands around his wife’s throat while holding her down—prompted the military judge to convene one of the sixteen Article 39(a), UCMJ, sessions. After the military judge explained that the Government needed to either charge the incidents or provide M.R.E. 404(b) notice, trial counsel complained that it was “unfair” for the Government to be required to provide notice of “each and every act” of the Appellant.
Diss. op. at 2 (emphasis added). A footnote adds this excerpt from the transcript:
[ATC:] We have to—within each specification we now have to—we were supposed to provide 404(b) notice for everything that happened within a particular assault incident?
[ATC:] It seems – it seems a little unfair ….
MJ: Unfair to who[m]?
ATC: Unfair to the government ….
MJ: That is one of the burdens of being the government.
Diss. op. at 2-3 n.3 (marks in original). This probably belongs in the it would be funny if it weren’t so pathetic category. Even if the Government has a right to a fair trial, notice is the hallmark of fairness.
The dissenters also highlight that there is evidence that the members were incapable of following the military judge’s instructions:
Moreover, our standard assumption about the effect of instructions on panel members is not without borders. As this Court has stated, “We presume, absent contrary indications, that the panel followed the military judge’s instructions.” United States v. Sewell, 76 M.J. 14, 19 (C.A.A.F. 2017) (emphasis added). In the instant case, contrary indicators are clearly present. Specifically, the members found Appellant guilty beyond a reasonable doubt of the assault consummated by a battery offense even though the military judge concluded during the members’ deliberation that there was no evidence in the record to support the element of battery. This verdict serves as substantial evidence that the members did not follow the military judge’s instructions and that their decision to convict Appellant was based on something other than the admitted evidence.
Diss. op. at 4.
Judge Ohlson’s dissenting opinion ends with a comment about the strength of the evidence:
And finally, the strength of the Government’s case was not particularly compelling. The prosecution relied entirely on the testimony of the victim and her two friends. There were no prosecution exhibits, no confessions or admissions by Appellant, no physical evidence, and no text messages or
other electronic evidence.
Diss. op. at 4-5. This analysis – that witness testimony alone is not particularly compelling – is reminiscent of CAAF’s mention of supporting evidence in United States v. Guardado, __ M.J. __, slip op. at 7 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page).
Despite the strong wording of the dissent, another court-martial conviction survives significant improprieties by the trial counsel. It’s becoming a theme. Whether prosecutorial misconduct is the product of inexperience and incompetence (like in United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page)), or caused by experienced prosecutors who should know better (like in United States v. Sewell, 76 M.J. 14 (C.A.A.F. Feb. 1, 2017) (CAAFlog case page)), the Government Appellate Divisions keep convincing CAAF to affirm the underlying convictions. Whatever they’re doing, it’s working.
• ACCA opinion
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis