Argument Preview: What to do about an award-winning prosecutor’s improper arguments, in United States v. Andrews
CAAF will hear oral argument in the Navy case of United States v. Andrews, No.17-0480/NA (CAAFlog case page), on Wednesday, February 28, 2018, at 9:30 a.m. The court granted review of a single issue:
The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?
Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.
Andrews admitted to the sexual encounter in a pretrial statement to military criminal investigators, however he claimed it was consensual. At trial he raised the defenses of consent and mistake of fact as to consent. Both sides presented evidence relevant to these defenses, but in closing argument the prosecution crossed the line.
Specifically, the Navy-Marine Corps CCA concluded that prosecutorial misconduct occurred during closing arguments when the assistant trial counsel called Andrews a liar, inappropriately mischaracterized Andrews’ statement to law enforcement, asserted that even Andrews’ defense counsel did not believe him, and misstated the law regarding capability to consent. Nevertheless:
while acknowledging that TC’s misconduct was severe, and assuming arguendo that the curative measures taken by the military judge were inadequate, we are “confident that the members convicted the appellant” of having sex with Ms. AB, while he knew or reasonably should have known that she was incapable of consenting, “on the basis of the evidence alone.” Sewell, 76 M.J. at *1415 ( citation and internal quotation marks omitted).
United States v. Andrews, No. 201600208, slip op. at 20 (N.M. Ct. Crim. App. Apr. 27, 2017).
At first look, CAAF’s grant of review appears to be limited to that finding of harmlessness. But the Navy-Marine Corps Appellate Government Division asks CAAF to look beyond it in two ways. First, the Government Division’s brief asserts that “failure to object to improper argument constitutes waiver,” Gov’t Div. Br. at 20, even though the NMCCA explicitly rejected this argument (discussed here), the Army CCA doubts it was right to accept this argument (discussed here), and CAAF will address its in a different case to be argued (by me) next month (grant noted here). Second, the Government Division disagrees with some of the CCA’s conclusions that the prosecution’s arguments were improper.
Nevertheless, in recent decisions CAAF repeatedly affirmed convictions despite conduct by prosecutors that “left much to be desired,” United States v. Short, __ M.J. __, __, slip op. at 5 (C.A.A.F. Jan. 5, 2018) (CAAFlog case page), where it amounted to “gross governmental misconduct,” United States v. Claxton, 76 M.J. 356, 361 (C.A.A.F. 2017) (CAAFlog case page), and even when “the prosecutorial misconduct . . . was sustained and severe.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (CAAFlog case page). That is largely because when reviewing prosecutorial misconduct, CAAF “gauge[s] 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) (citations omitted).
Andrews’ brief, however, makes personal blameworthiness a significant aspect of this case.
After a lengthy recitation of ostensibly-improper arguments by the assistant trial counsel, and an acknowledgement that the CCA found those arguments to be harmless, Andrews’ brief highlights that:
V. The Judge Advocate General and the Deputy Judge Advocate General praised the assistant trial counsel’s advocacy.
For the ATC’s work on QMSA Andrews’ case and several others, the Judge Advocate General of the Navy and his deputy recognized him as the “Trial Counsel of the Year,” citing his “skillful advocacy [that] resulted in a 100% conviction rate in contested cases.” This award required a nomination from the ATC’s Commanding Officer to the Deputy Judge Advocate General of the Navy. And recipients of a “Superior Performance Award,” like “Trial Counsel of the Year,” typically receive a Navy and Marine Corps Achievement Medal.
App. Br. at 22 (formatting in original). It’s hard to tell which way this cuts. On one hand, CAAF may give greater scrutiny to the conduct of an award-winning prosecutor. But on the other hand, the court may give more deference.
But in the end Andrews’ brief applies the customary test for prejudice in the case of improper argument:
To assess the prejudice of trial counsel’s misconduct, this Court balances three factors: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.”
App. Br. at 25 (quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)).
The Government Division’s brief offers a range of arguments in response. First, the Government Division asserts that:
The lower court erred in finding that Trial Counsel “invented admissions,” and overstated the severity of Trial Counsel’s improper argument, both in terms of raw instances, and in whether it permeated the initial findings argument.
Gov’t Div. Br. at 29. I don’t see any analysis of how the CCA erred, just the conclusory assertion that it did.
Second, the Government Division asserts that:
in closing, Civilian Defense Counsel attacked Trial Counsel’s analogy to contract law, arguing “a drunk person can’t consent to signing a contract are you kidding me is that really where we’re going. It’s clearly not the law . . . .” (J.A. 443.)
Rather than allowing the Military Judge to ameliorate any possible prejudice to Appellant by objecting to this argument, Appellant instead chose to tactically discredit Trial Counsel, and undermine the strength of the United States’ case. Thus any resulting impact on the Members from Appellant’s tactical decision to counter, rather than object to Trial Counsel’s misstatement of the law or disparaging comments is not prejudice “caused by trial counsel’s comments,” and should not be held against the United States. Cf. Sewell, 76 M.J. at 18. Further, by correctly reminding the Members that Trial Counsel’s argument was a misstatement of the law, it further mitigated any impact Trial Counsel’s improper argument may have otherwise had on the Members.
Gov’t Div. Br. at 30. It’s hard to figure out what the Government Division is trying to say here. It seems to blame the defense for not objecting and forcing the military judge to correct the improper argument, but it also argues that the defense cured the impropriety through opposing argument. Lost in all of it, however, is any acknowledgement that it is “as much [the prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” United States v. Pabelona, 76 M.J. 9, 12 (C.A.A.F. 2017) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
Third, the Government Division asserts that:
The evidence against Appellant was strong. The United States established through witnesses at the party that the Victim was so heavily intoxicated she was unable to follow conversations, and could not walk without assistance. (J.A. 135-37, 146-49, 153, 159, 205, 219.) The evidence established that the Victim vomited just before Appellant decided that “he didn’t care” and had sex with her. (J.A. 491.)
Appellant admitted that he barely knew the Victim and knew she was intoxicated. Guests witnessed the Victim showing no warmth or receptiveness to Appellant’s repeated attempts to talk to her. Appellant admitted that although he was warned repeatedly by Petty Officer K and RW against trying to “hook up” with the Victim, he nonetheless went the room where the Victim slept to see if he could “get lucky.” The evidence demonstrated not only that the Victim was in no state to consent to sexual activity, but also that Appellant knew or should have known her physical state.
Gov’t Div. Br. at 32-33. This is functionally what the CCA concluded and it is the Government Division’s best argument for affirming the convictions. But CAAF will likely wonder why, if the evidence was so strong, the award-winning prosecutor resorted to improper arguments.
Finally, the Government Division argues that:
The fact that the Members acquitted on two of the three [sexual] offenses charged stands as ample testament to the degree to which the Members listened to and applied the instructions of the Military Judge and disregarded any possible improper arguments of counsel.
Gov’t Div. Br. at 35. It’s hard to see how acquittals on 2/3 of the disputed allegations proves the case was strong.
A reply brief from Andrews tackles the Government Division’s waiver argument with the observation that:
to change the law now would undermine public confidence. During the time of QMSA Andrews’ trial and appeal at the lower court, this Court’s precedent was clear: it reviewed improper argument under a plain error standard in the absence of an objection. . . . To shift course now would constitute a stark departure from precedent and deprive QMSA Andrews of appellate review on an issue this Court has repeatedly stated it reviews for plain error.
Reply Br. at 5. Andrews also accuses the Government Division of selectively reading the record:
In arguing that the strength of its case established a lack of prejudice, the Government, in its forty-three page brief, omitted any mention of a central fact: before the sexual intercourse, AB “took her pants off.” And unlike the Government, when this Court evaluates the weight of the evidence, it cannot ignore Prosecution Exhibit 5, which established that after QMSA Andrews asked AB if she wanted to “have sex,” she did more than just vomit. She verbally said “yes” and removed her own pants.
Reply Br. at 7.
While CAAF may have granted review to determine only whether the CCA “g[ave] its imprimatur to the prosecutorial misconduct,” it’s unlikely the parties will focus on just that narrow issue during Wednesday’s oral argument.