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.

Case Links:
• 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

23 Responses to “Opinion Analysis: A sharply divided CAAF finds no prejudice from a trial counsel’s misconduct, in United States v. Short”

  1. Defense Wizard says:

    When I was a young TC, I was given a great instructional book on what not to do. Then, I was told about US v. Marsh, and why the 82d was retrying it. I was told “don’t do that.” Maybe if the Army had to retry a few cases, these kinds of shenanigans would stop.

  2. Sir Visdis Crediting says:

    How did the military judge’s conclusion, made during the members’ deliberation, that there was no evidence to support a battery end up in the record? I’m assuming this was during some back-and-forth with the counsel and nothing to do with an R.C.M. 917 motion.

  3. Zachary D Spilman says:

    The defense waited until deliberations began before making the 917 motion, Sir Visdis Crediting:

    After the court was closed for deliberations on findings, the defense moved for a finding of not guilty on one of the assault consummated by a battery specifications, arguing that the Government failed to establish that any items Appellant was alleged to have thrown at the purported victim while she was cowering in the bathtub actually hit her. The military judge ruled that there was no evidence that the alleged victim was struck but there was sufficient evidence for the members to find Appellant guilty of simple assault. Instead of interrupting the court’s deliberations and so advising the members, the military judge waited until the members returned with a verdict of guilty. Then, the military judge instructed the members on the lesser included offense of simple assault and had the members return to deliberate on that offense. 

    Slip op. at 3-4. 

  4. Just another jag says:

    ”inexperience rather than guise…”
    ill say it again….the ATC in this case, who complained about fairness to the government and made the closing argument,  was a mobilized reservist who is a civilian prosecutor. He was not fresh out of law school and was not inexperienced in the courtroom.

  5. Tami a/k/a Princess Leia says:

    Geez, what does it take to get justice these days?

  6. stewie says:

    A reminder Just another jag when folks talk about how sexual assault would be better handled in the civilian system.

  7. Dew_Process says:

    CAAF, with due respect to those at CAAF who follow CAAFlog, is envisioning a trial / court-martial process that has been demonstrably proven wrong by years of social-science research. Namely:

    The content of the message exerts its impact even if we (consciously) believe the source to be non-credible. This is the primary factor behind the legal aphorism that “you can’t unring the bell.” Once an inadmissible statement is uttered, instructions to disregard are largely ineffective (Kane, 2007).

    Source LINK.
    See also:

    Our concern over prejudice, in turn, influences the order of events at trial. If there is a question about the admissibility of evidence, it must be resolved before the jury hears about it and outside of their presence. That is because you “can’t unring the bell.” If the jury hears the bell, that is, the improper evidence, they lack the discipline to say, “When I think about this case I will ignore what I’ve just heard.” We don’t trust them to be able to do that. For that reason we resolve admissibility of evidence outside of jurors’ presence.

    That imho is the premise that trial defense counsel need to advocate (and preserve) when making mistrial motions.  Judge Jerome Frank once famously observed in a bitter dissent on a similar issue: “And the courts have said that the words of the government’s lawyer are likely to be exceptionally impressive, since he is an official.” [footnote omitted] U.S. v. Antonelli Fireworks Co., 155 F.2d 631, 654 (2nd Cir. 1946)(Frank, J., dissenting). He went on to conclude something applicable here:

       This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel’s alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, ‘Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.’ Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court- recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary. [footnote omitted.

    Id. at 661.

  8. Alfonso Decimo says:

    My sympathies are with the MJ for this case. The mistrial standard is a high bar, so the MJ was forced to attempt to cure the prosecutor’s errors, over-and-over. One tactic that might be effective is to ask the government trial counsel to have someone senior to him from the Trial Service Office sit in the gallery for the 39a and then detail the errors and the curative efforts for the record. The MJ has to be well-aware of the limits of his authority, but should also fully exercise the authority provided. Otherwise, you have Judge Ito, scrambling to maintain control of fully-charged and exploding loose cannons rolling across the decks.

  9. Alfonso Decimo says:

    Phil – I really enjoyed the article you posted by John L. Kane, particularly where he explains that, when counsel are bickering and not arguing, their clients are essentially appearing pro se. You should listen to the NPR Story-Corps episode where John Kane’s daughter interviews him. – AD(ES)

  10. stewie says:

    Trial counsel are fungible, couldn’t a MJ, in a very extreme case of course, simply say to a TC…you are done…your co-counsel or someone else can finish this?

  11. Philip D. Cave says:

    Stewie, it’s been done.

  12. stewie says:

    Seems like it should have been done in this case then.

  13. Charlie Gittins says:

    In United States v. Adens, Army CCA, the court found prosecutorial misconduct and reversed the conviction.  During the trial, the MJ ordered the lead trial counsel to say nothing more  in her court.  He could sit at the table with the ATC and could provide written notes to him but he could not speak a word on the record until the trial ended.  I parked in a visitor spot outside the courthouse and the TC had the MPs ticket my car.  That was the least annoying thing he did, but when I complained to the SJA that I was going to file and ethics complaint against him as supervisory attorney, my ticket was revoked.  Sit down and STFU.  Pretty sweet not have to listen to the annoying counsel for the rest of trial.

  14. Not an MRE Expert says:

    To play devils advocate a bit on the 404b issue, does anyone actually think that the TC had to provide a detailed explanation of the uncharged misconduct?  And if so how detailed?  The rule clearly doesn’t call for detailed explanation, and no case law I have seen does either. 
    Now, the quoted section about makes it sound like the TC did not provide any notice w/r/t the strangling incident, which would obviously be a problem.  But the TC also wasn’t required to provide a narrative of each incident of uncharged misconduct.

  15. Zachary D Spilman says:

    does anyone actually think that the TC had to provide a detailed explanation of the uncharged misconduct?

    I do.

    And if so how detailed?

    A synopsis of the expected testimony. It’s not hard.

    The rule clearly doesn’t call for detailed explanation

    Sure it does. The rule addresses “evidence of a crime, wrong, or other act. . . ” Mil. R. Evid. 404(b)(1) (emphasis added). That means one-at-a-time. The rule then states that the prosecution must “provide reasonable notice of the general nature of any such evidence that the prosecution intends to offer at trial.” Mil. R. Evid. 404(b)(2)(A) (emphasis added). So, notice of any crime, wrong, or act.

  16. Not an MRE Expert says:

    Obviously, any TC would have to provide a brief synopsis of the 404b evidence to be presented in the 404b notice.  I also agree that the Government has to provide notice of each act that may be introduced at trial.  That’s all pretty clear from the rule.
    The more pertinent section is “the general nature of any such evidence.”  Plainly, that does not require the TC to make a detailed proffer of the 404b evidence in the Government’s notice. 
    I don’t know if the TC noticed the 404b evidence referenced in the above quote.  He seems to imply he had.  If he had, and the DC was able to correctly understand what acts were included in the notice, that is enough to satisfy the rule. 

  17. Zachary D Spilman says:

    You’re living up to your pseudonym, Not an MRE Expert.

    The general nature of the evidence necessarily includes the specific crime, wrong, or other act, and the non-propensity reason it is relevant. 

    So in Short, for example, had the prosecution given notice that it planned to introduce evidence that “Appellant allegedly put his hands around his wife’s throat while holding her down” for the non-propensity purpose of whatever, then the military judge would not have had “to convene one of the sixteen Article 39(a), UCMJ, sessions.” Diss. op. at 2.

    As the military judge explained:

    either charge the incidents or provide M.R.E. 404(b) notice

    Diss. op. at 2. Notice either way.

  18. Not an MRE Expert says:

    Good retort.  Though not sure anything you said contradicts my post.  I already agreed a notice has to include the specific act.  And I said I did not know if the TC in Short  provided notice. 
    What a TC clearly does not have to do is provide the non-propensity reason the evidence is relevant.  That is no where in the text of the rule and no military case law requires it.  There is substantial federal case law that specifically states it is not required.  If you know some authority that shows the Government needs to provide the non-propensity theory of admission for the noticed 404b evidence then let me know. 
    Thanks for the discussion.

  19. Zachary D Spilman says:

    The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character. 

    Huddleston v. United States, 485 U.S. 681, 686 (1988). See also United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989) (three-part test for admissibility; part two is: What fact of consequence is made more or less probable by the evidence?).

    Must make. Before admitting. 

    And, of course, “the proponent of evidence has the burden of showing that it is admissible.” United States v. Palmer, 55 M.J. 205, 208 (C.A.A.F. 2001).


  20. Not an MRE Expert says:

    I guess I was unclear, or thought you knew we were talking about the notice.  First, no party can be the proponent of evidence until it is sought to be admitted.  Sending the required notice under 404b does not make a party a proponent of evidence as they are not seeking to admit the evidence.  Second,  404b has no requirement to provide the theory.  In short, a TC does not need to provide the non-propensity purpose anytime before trial.  Huddleston and Reynolds don’t hold otherwise.
    I agree at trial the Government does have to provide the theory of admission. 

  21. Zachary D Spilman says:

    I think it’s exactly that attitude, Not an MRE Expert, that got the trial counsel in Short so much heat from the military judge.

  22. Nick Hathaway says:

    Ok? I don’t understand what my attitude was or where we disagree.  But good talk.