Earlier this year a three-judge panel of the Army CCA issued an unpublished decision denying a petition for extraordinary relief in Murray v. United States, No. 20180025 (A. Ct. Crim. App. Jan. 31, 2018) (link to slip op.).

The petition was based on allegations of prosecutorial misconduct and the CCA rejects it because the claimed misconduct was “known by appellant prior to the original court-martial judgment,” and because it finds “no valid reason for petitioner’s failure to raise this issue during his court-martial and seek relief earlier.” Slip op. at 1.

But the CCA doesn’t leave it there. Writing for the panel, Senior Judge Campanella details the substance of the allegations, explaining that:

Petitioner alleges that during his court-martial, the prosecutor, Lieutenant Colonel (LTC) Matthew McDonald, took CPT KB aside, and asked him a series of questions related to the rental arrangement between petitioner and CPT KB and asked CPT KB whether he reported the rental income on his income taxes. Petitioner asserts that during this conversation LTC McDonald threatened CPT KB with criminal prosecution, and reporting him to his chain of command and the Internal Revenue Service (IRS), if he testified for petitioner.

Slip op. at 2. If you think the name of that prosecutor is familiar, you’re right. CAAF also named him in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) (CAAFlog case page).

Applying the ordinary (and strict) six-part threshold test for granting extraordinary relief, Senior Judge Campanella explains that Murray’s petition fails on its merits:

In United States v. Morgan, 346 U.S. 502, 511-12 (1954) the Supreme Court observed that coram nobis permits the “[c]ontinuation of litigation after final judgment and exhaustion or waiver of any statutory right of review,” but only under very limited circumstances. Although a petition may be filed at any time without limitation, a petitioner must meet all six stringent threshold requirements: (1) the alleged error is of the most fundamental character; 2 (2) no remedy other than coram nobis is available to rectify the consequences of the error; (3) valid reasons exist for not seeking relief earlier; (4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment; (5) the writ does not seek to reevaluate previously considered evidence or legal issues; and (6) the sentence has been served, but the consequences of the erroneous conviction persist. Denedo I, 66 M.J. at 126 citing Morgan, 346 U.S. at 512-13; Loving v. United States, 62 M.J. 235, 252-53 (C.A.A.F. 2005).

First, assuming petitioner’s claims are true, petitioner’s writ alleges an error that is clearly fundamental in character in that it has the potential to affect the credibility of the child victim’s testimony in this case.

Second, there appears to be no other remedy available to petitioner.

As to the third criteria, we find it is not met. This court finds no valid reason why petitioner did not seek relief earlier. Petitioner’s assertions that he was overwhelmed by the court-martial process, did not want to injure his friend’s career, and did not understand the full import of LTC McDonald’s conduct, are not credible. Had petitioner explained the situation to his defense counsel at the time, action could have been taken to address the alleged misconduct. We find petitioner’s reasons unreasonable and unconvincing.

As to the fourth criteria—whether the alleged prosecutorial misconduct could have been discovered using reasonable diligence—the information was known by appellant at the time of his court-martial prior to the original judgment. Defense’s argument, that LTC McDonald’s misconduct was not “discovered” because petitioner failed to inform his defense counsel due to his concern for his friend’s career and his misunderstanding of the seriousness of the alleged misconduct, falls flat with this court. Petitioner had actual knowledge during his court-martial of the very information he puts before this court today including the underlying information that could be used in an attempt to impeach the victim. Curiously, the record before us conspicuously contains no information regarding the defense counsel’s response to being informed by his client that a key witness in the case would not be testifying. Because a defense counsel decides which witnesses to call, and because of the nature of witnesses testimony in this case, we find the petitioner’s assertion of unquestioning acceptance by the defense counsel to be implausible, and again, unconvincing.

[Footnote: We need not decide the two remaining criteria.]

Finally, we have recently held that an extraordinary writ cannot be used as an end-run around the two-year time limit for considering a petition for new trial under Article 73, UCMJ. Unites States v. Roberts, ARMY MISC 20180005, __ M.J. __ (Army. Ct. Crim. App. 30 Jan. 2018) [discussed here].

Slip op. at 3-4.

A footnote adds:

This court directs the Clerk of Court to process this allegation in accordance with appropriate protocols regarding allegations of prosecutorial misconduct.

Slip op. at 4 n.5.

Senior Judge Campanella’s decision ends by dismissing the writ petition for lack of jurisdiction, which seems to me to be the wrong result (because the threshold requirements aren’t jurisdictional but rather go to whether the requested writ should be granted, and so the petition should be denied rather than dismissed). But on March 13 CAAF agreed with the CCA:

No. 18-0147/AR. In re Gregory J. Murray. CCA 20180025. On consideration of the brief in support of petition for extraordinary relief in the nature of writ of error coram nobis, or, in the alternative, writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the petition is hereby dismissed for lack of jurisdiction.

25 Responses to “A familiar name accused of more prosecutorial misconduct”

  1. Z. Saroyan says:

    I have never understood how often (and quickly) the prosecution forgets that it “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”  Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935).
     
      

  2. Nathan Freeburg says:

    Nothing here is surprising, alas. 
    But then it has been a very rough week. 

  3. McLovin says:

    WAIT … a CCA actually named the prosecutor who engaged in misconduct?!!!! <Clutches pearls, worries about state of good ol’ boy club>

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

    Also Guardado.

  5. k fischer says:

    Footnote 5 This court directs the Clerk of Court to process this allegation in accordance with appropriate protocols regarding allegations of prosecutorial misconduct. 
     

    What exactly do those protocols entail?  (a) Sealing the record, so the public cannot obtain the opinion or (b) notifying the named person’s state bar?
     
    I must say that I am having a bit of Schaudenfreude with his name being a recurring topic of conversation on this blog and the appellate courts for allegations of prosecutorial misconduct.  When he was a CoJ at Benning, the SJA filed a SOCO complaint against me and one of Matt’s trial counsel filed a Florida bar complaint against me after an extremely embarrassing acquittal for the Government, both of which were unfounded.  If he had anything to do with them filing said complaints, then the term that comes to my mind would be “projection.”
     
    I had a co-counsel in an acquittal against him who was appalled by him and said he was intimidating witnesses on the stand during an Article 32.  I think one of the questions might have been about an IRS tax issue regarding the witness’s wife being paid as a photographer for a unit function, so this, if true, is not surprising at all.

  6. DCGoneGalt says:

    My prediction – In 5 years, he’ll be a GS-14/15 civilian working in the Army or Air Force Appellate Government shop.

  7. I have the high ground ... says:

    We put pretty inexperienced people into jobs with a lot of responsibility. But, there is a problem where being known as a defense guy or even a “balls-and-strikes” guy is far less career enhancing than being unreasonable or worse on the prosecution side. And that’s, unfortunately, probably an accurate assessment of the way things work.
    I’m not saying we should be taking people’s licenses or ruining careers on a whim, but there has to be some balance. I don’t really have a solution, just an observation that people who are unreasonable or reckless when on the government side don’t seem to have anything to lose. There are people who do some pretty dodgy stuff, get caught, and there’s no fallout. It incentivizes cutting corners and pushing the envelope. The closest thing I can think of is that you can’t be an SVP or judge unless you’ve done TDS, but that’s maybe a little unfair given people don’t get to control their assignments.
     

  8. Zachary D Spilman says:

    there is a problem where being known as a defense guy or even a “balls-and-strikes” guy is far less career enhancing than being unreasonable or worse on the prosecution side

    What really gets me about that comment, I have the high ground …, isn’t just that it rings very true, but that it’s the exact opposite of what Congress and the various special interests who keep busy attacking the military justice system believe.

    In their minds we’re all just true believers who are covering for each other. 

  9. EmmanuelGoldstein says:

    I worked with LTC McDonald, against LTC McDonald, then he was my boss for his last year in the Army. He’s very zealous for whatever side he is on. But he’s a great guy and I loved serving with him.

  10. Link says:

    The military is taking more hits from the new FY 17  SAPRO report. How is the military going to compete with the narrative that prosecution rates are plummeting while sexual assault reports are increasing? This case is a symptom of the fact commanders and JAGs are already being pressured to to take everything to trial.

  11. TC says:

    Link,
    So you’re saying this O-3 was convicted of raping a 12-year-old in 2014 because commanders are under pressure to take everything to trial? 

  12. McLovin says:

    “But he’s a great guy.”
    He may well be a “great guy,” but I’m so tired of the JAG Corps’ collective willingness to look past and even endorse blatant prosecutorial misconduct.  Maybe I’m being harsh, but “great guys” don’t threaten defense witnesses and they don’t forget their first responsibility is to uphold the integrity of the military-justice system. 

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

    Sometimes prosecutors get confused between “being zealous” and “doing justice.”  Being zealous at all costs is not doing justice.  He retired in 2015. 

  14. K fischer says:

    Link, 
     
    McDonald was taking almost everything to trial back in ’05 before there was any Congressional pressure.  It has nothing to do with Congressional pressure.

  15. That Guy says:

    So, what is the over-under on this prosecutor either reading the witness his/her rights or having the MJ read the rights, before asking an incriminating question of a witness? I just wonder how the prosecutor would have played that out in court.  As far as the protocols for prosecutorial misconduct, that goes through the professional responsibility section, and I believe TJAG would decide to send to the state bar.  The privacy act will probably block us from ever knowing, although you could use FOIA to possibly get around it-I am sure there is a small number of TJAG referrals to state bars…..

  16. Philip D. Cave says:

    Random thinking.
    A lawyer has a duty to a person who is not represented and who she believes may have committed an offense?  As a partial answer to That Guy, that means a TC should advise a witness of their rights if they will ask questions related to the suspected offense (I think that’s what Art. 31 requires), and yes, we on occasion have the situation come up in court and it is taken up outside the presence of the members, because it’s improper to ask a witness a question when they know the person will exercise their rights in front of the jury.  See MRE 512(b).
     
    So, if a TC does, in fact, tell a witness that they suspect the person of an offense that goes to the witness’s credibility is that wrong?
     
    Should the TC now disclose that to the defense–methinks so–there’s a duty of candor here.  I think Rule 3.4 can reasonably be construed to cover that.  Because then, the defense can evaluate the need to call the witness or to request immunity for the witness–or in this case raise an issue of possible witness intimidation (e.g. prosecutorial error-to use a phrase D_P prefers).  (Yes, the subsequent denial of immunity creates issues, but is that by itself improper?)
     
    So far, is that a threat?
     
    So, the TC then says, and if you testify you WILL be prosecuted, or says enough that the implication that it’s best not to testify is clear, now what?  Where’s the line?  When is it crossed?  As I read the ACCA decision the line appears to have been crossed.
     
    I’m aware this particular TC had a reputation beyond this case–Note to crowd, this is a reason your word and your Service reputation are so important to preserve.

  17. k fischer says:

    That Guy:
     
    I don’t know what the over-under would be in court.  He did it during a 32.  I think we objected.  And at some point the Article 32 officer told him to move on.  But, addressing the issue in open court certainly is far less heinous than supposedly threatening a defense witness with prosecution regarding failing to report income to the IRS prior to trial.

     
    although you could use FOIA to possibly get around it
     

    HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHHAAHAHA………..[takes sip of coffee]………………………………………. …………………….AHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHHAAHAHAHAHAHAH.  
     
    You very funny, GI! I know someone who has been battling to obtain what action was taken on his case against the SVP in his SOCO complaint……for going on about two years now….
     
     

  18. Allan says:

    Just wondering.  Have anyone serving as defense counsel advised a prosecution witness of their Article 32 rights? 

  19. Former AF Capt says:

    Read them their Article 32 rights?  Nope… not that those matter much under the new 32.  But I suspect that was just a typo so I digress.
    I was always taught DCs don’t need to ask because they aren’t asking in a law enforcement capacity.

  20. Philip D. Cave says:

    Yes.

  21. k fischer says:

    But, Link brings up a good point regarding the FY17 SAPRO report and posits “[h]ow is the military going to compete with the narrative that prosecution rates are plummeting while sexual assault reports are increasing?” 
     
    I have one hypothesis as to why this is occurring.  My educated guess based on my experience is that this phenomena is caused by a large number of false allegations,which is the result of everyone jumping on the bandwagon of #metoo because victimization is the latest craze.  If anyone wanted to really figure out what the problem is, then they would commission a panel to investigate this by reviewing the facts of each case.  So, it would either be that many of these victims are liars or that they are not lying and prosecutors are just being lazy/overworked.  Or maybe lumping all sex offenses into Article 120 offenses has conflated sexual misconduct.  And when one hears that there were 6,700 reports of sexual violence, then they might think of rape, rather than a touching of the shoulder.  
     
    But, I think that there is a much larger “false allegation” problem that nobody wants to address and if the military wanted to fight back then it would study these files to see if that problem exists.

  22. Son of Skywalker says:

    Allan – I read a prosecution witnesses Article 31 rights as a DC.  She was the government’s primary witness.  She refused further participation.  Win.

  23. Concerned Defender says:

    The problems, and the solutions, are easy to identify and easy to remedy.  Problem is “we” collectively (Congress, the JAG Corps, etc.) don’t have the stones to do the right thing – in spite of constantly harping on integrity and doing the right thing.
    In this case it appears the good ‘ole LTC committed a number of infractions from witness intimidation, non-mirandized/ART 31 questioning, blackmail, obstructing justice, threatening criminal prosecution “unless…” and violating probably a few rules of ethics, and some other nasty allegations.  I’d think a sanction or disbarment is warranted, if proven and depending on the balance of the facts.
    Problem is, the JAG Corp collectively ignores or does nothing punitive.  And generally by the time this stuff surfaces, the offenders are years away from the assignment, got their glowing OER for being “zealous” and might have even retired or exited the service so are outside the reach of the UCMJ or JAG Corps.  State bars should be notified.  But in most cases the harm was done and hard to remedy.  
    I think we can agree, universally, that we expect MORE from our prosecutors.  Fair prosecutions.  Not over-zealous prosecutions.  
    The other underlying issue is the false allegation and metoo generation bringing every false or trivial interaction or allegation out of the woodwork to settle scores, vendettas, grievances, ill-motivations, reputation, or even VA disability benefits.  I’d suggest a very easy and free fix.  
    Every SVA or prosecutor should be required to instruct every “victim” that the statement and allegation they are about to make is serious and carries serious penalties.  If the allegation is false they will be charged with a false statement, and there should be a new crime that affixes the SAME penalties to the false accuser as the underlying accusation.  That would chill all these false accusations and restore some level of order to the system, and only bring the real offenses forward.  No more of these nonsense allegations…  which seem to require the SVAs and TCs to cut a lot of corners to get to a prosecution.  And it would restore REAL crime figures to the military and refocus the efforts to help REAL victims and stop wasting time/money/resources on the “I can’t handle my vodka and made bad decisions I wanted at the time but now regret, so now someone else should go to prison” accusations.

  24. TC says:

    What’s the max punishment for a really absurd blog comment?  Divers occasions of course.

  25. Anonymous says:

    What’s absurd about it? Should people get free passes to falsely accuse someone of a crime they never committed? The UK doesn’t think so https://www.google.com/amp/s/amp.theguardian.com/society/2017/aug/24/woman-jailed-10-years-false-rape-claims-jemma-beale
    Sounds like the Mueller Soecial Counsel has a future target, the JAG Corps.