Opinion Analysis: CAAF rattles its saber over a prosecutor’s improper arguments that “amounted to grievous error” but were nevertheless harmless, in United States v. Voorhees
CAAF decided the Air Force case of United States v. Voorhees, __ M.J. __, No. 18-0372/AF (CAAFlog case page) (link to slip op.), on June 27, 2019. Reviewing the closing arguments of an experienced Air Force prosecutor, CAAF finds clear or obvious error in the prosecutor’s personal attacks on Voorhees’ defense counsel, personal attacks on Voorhees himself, expressions of personal opinion, bolstering, and vouching, and it concludes that the “trial counsel’s misconduct amounted to grievous error.” Slip op. at 8. Not too grievous, however, because CAAF also finds that, in context, the “arguments were unlikely to prejudice the panel against Appellant.” Slip op. at 10. The court further concludes that the offense of conduct unbecoming an officer and gentleman, in violation of Article 133, is merely a general intent crime. Accordingly, CAAF affirms the five convictions of conduct unbecoming, the sentence, and the decision of the Air Force CCA.
Judge Sparks writes for a unanimous court.
CAAF granted review of three issues:
I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.
II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.
III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133
Major (O-4) Voorhees was convicted by a general court-martial composed of members of one specification of sexual assault and five specifications of conduct unbecoming an officer and gentleman, in violation of Articles 120 and 133. The conduct unbecoming specifications alleged that Voorhees improperly communicated with subordinate females (four specifications) and that he massaged the back of one of them (an enlisted Airman). The sexual assault conviction involved intercourse with one of the women, but that conviction was reversed by the Air Force CCA as factually insufficient in 2016, leaving Voorhees convicted of just the five specifications of conduct unbecoming. The CCA ordered a sentence rehearing on those convictions, and Voorhees was sentenced to a reprimand and to be dismissed.
Having won reversal of his sexual assault conviction at the CCA, Voorhees’ appeal to CAAF focused on his five convictions of conduct unbecoming, and CAAF granted review of two basic questions: Was the prosecutor’s closing argument improper, and does conduct unbecoming require a specific mens rea. CAAF rejects Voohees’ mens rea argument entirely, concluding that just like the military-specific offense of maltreatment considered in United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, 137 S. Ct. 248 (Oct. 3, 2016) (CAAFlog case page), “there is no scenario where an officer who engages in the type of conduct [Voorhees] engaged in can be said to have engaged in innocent conduct.” Slip op. at 16 (marks and citation omitted).
Voorhees’ claim that the prosecutor used improper arguments to win the convictions, however, gets remarkably different treatment. Judge Sparks’ opinion for the unanimous court agrees with Voorhees that the arguments were improper, concluding that they “amounted to grievous error,” slip op. at 8, and Judge Sparks castigates the Air Force Appellate Government Division for defending the arguments (though says nothing about the Air Force CCA, which found no error). The opinion also contains a 513-word note on prosecutorial misconduct, slip op. at 12-13, that bemoans “the consistent flow of improper argument appeals to our Court” and ends with the aspirational principle announced last year that “every attorney in a court-martial has a duty to uphold the integrity of the military justice system.” Slip op. at 13 (quoting United States v. Andrews, 77 M.J. 393, 404 (C.A.A.F. 2018) (CAAFlog case page)). Yet all of that is dicta, because “‘regardless of trial counsel’s improper arguments, there was ample evidence in support of’ Appellant’s convictions.” Slip op. at 11 (quoting Andrews, 77 M.J. at 403).
Judge Sparks begins by subtly naming the prosecutor, explaining that:
As trial counsel tried to establish his bona fides with the court members during voir dire, he introduced himself as an attorney of considerable experience and gravitas:
I’m Captain Josh Traeger. I’m a senior trial counsel assigned to Peterson Air Force Base. In that capacity I travel around the world, between 200 and 250 days a year, prosecuting the Air Force’s most serious cases.
… And on behalf of the Unites State [sic] of America, I am happy to be prosecuting this case.
Despite his self-described expertise, trial counsel’s findings and rebuttal arguments were riddled with egregious misconduct, much of which amounted to clear, obvious error.
Slip op. at 4 (quoting record) (omissions in original). Then Judge Sparks considers three categories of Captain Traeger’s egregious misconduct: “(1) personal attacks on defense counsel; (2) personal attacks on Appellant; and (3) expressing personal opinions, bolstering, and vouching.” Slip op. at 4.
First, the personal attacks on defense counsel included “accus[ing] defense counsel of ‘misplaced lying,’ and ma[king] the defense theory of the case seem fantastical, saying ‘defense counsel’s imagination is not reasonable doubt.'” Slip op. at 4. Judge Sparks explains that:
it is improper for a trial counsel to attempt to win favor with the members by maligning defense counsel, including accusing the defense counsel of fabrication. . . . [W]hen trial counsel maligned defense counsel, he risked both turning the trial into a popularity contest and influencing the members such that they may not have been able to objectively weigh the evidence . . . Indeed, the panel could have been so swayed by trial counsel’s disparaging remarks that they believed that the defense’s characterization of the evidence should not have been trusted, and, therefore, that a finding of not guilty would [have been] in conflict with the true facts of the case. . . .
Slip op. at 5 (marks and citations omitted). That analysis includes an important footnote:
The Government contends trial counsel’s attack on defense counsel was simply challenging “defense counsel’s misrepresentation of the record and the law during closing argument.” If the defense counsel mischaracterizes the evidence or misstates the law, the trial counsel may object, ask the military judge for an instruction, and explain the mischaracterization during rebuttal argument. But he may not label the defense counsel a liar or fabricator, nor may he engage in any argument amounting to prosecutorial misconduct. See Fletcher, 62 M.J. at 181.
Slip op. at 4 n.2 (emphasis added). Insofar as that footnote (that has no impact on the outcome of this case) is precedent, it’s an important precedent because it explicitly rejects the invited error excuse for improper argument by military prosecutors. In United States v. Haney, 64 M.J. 101 (C.A.A.F. 2006), a fractured court considered a prosecutor’s arguments about the accused’s invocation of his right to counsel in a case where the defense claimed that a confession was coerced. CAAF was deeply divided over whether the argument in Haney was improper (though it unanimously agreed that any impropriety was harmless beyond a reasonable doubt). But a lengthy dissent from Judge Crawford parsed the prosecutor’s comments into “fair rebuttal” and “beyond fair rebuttal,” 64 M.J. at 116, and it grappled with Supreme Court cases considering improper prosecution argument that was invited by improper defense argument, suggesting that “the better remedy is for the trial judge ‘to deal with the improper argument of the defense counsel promptly and thus blunt the need for the prosecutor to respond.'” 64 M.J. at 114 (quoting United States v. Young, 470 U.S. 1, 13 (1985)). CAAF is now unanimous in Voorhees: the prosecution “may not,” in response to defense impropriety, “engage in any argument amounting to prosecutorial misconduct.” Voorhees, slip op. at 5 n.2.
Next, the personal attacks on Appellant included:
repeatedly attack[ing] Appellant’s character, calling him “perverted,” “sick,” and a “narcissistic, chauvinistic, joke of an officer.” At one point, trial counsel went so far as to describe Appellant as, “[n]ot an officer, not a gentleman, but a pig.” Later, trial counsel stressed this theme further, adding, “Disgusting. Disgusting. Deplorable. Degrading. That’s the nature of the conduct that the accused committed. That’s the nature of this man.”
Slip op. at 6. Judge Sparks explains that such “attacks on Appellant also amount to clear error.” Slip op. at 6. And later in the opinion – in the note on prosecutorial misconduct – Judge Sparks criticizes the Air Force Appellate Government Division for its defense of those comments, writing:
The Government’s poor decision-making in this case was not limited to the trial level. In its brief, the Government acknowledged that “[d]isparaging comments directed at an accused can be improper,” but argued that “[i]n this case, trial counsel’s comments were a reasonable inference from the evidence admitted at trial, and not outside the norms of fair comment in a court-martial where the appellant was accused of conduct unbecoming of an officer.” Brief for the Government at 19, United States v. Voorhees, No. 18-0372 (C.A.A.F. Jan. 15, 2019). Appellate counsel repeated this sentiment at oral argument. We find it deeply troubling that experienced appellate attorneys persistently argued that it is within “the norms of fair comment” for a trial counsel to refer to an accused as a “pig,” “a pervert,” and “a joke of an officer.”
Slip op. at 12-13, n.7. Unstated, however, is that the Air Force CCA gave tacit approval to the underlying comments with the conclusion that:
while trial counsel’s use of the above adjectives to describe Appellant was perhaps ill-advised, they do not rise to the level of plain error.
United States v. Vorhees, No. 38836, slip op. at 11, 2016 CCA LEXIS 752, at *21 (A.F. Ct. Crim. App. Nov. 23, 2016) (emphasis added).
Finally, the expression of personal opinion, bolstering, and vouching included a litany of improper comments, including the trial counsel describing one alleged victim as “an outstanding airman”; characterizing a prosecution witness’s testimony as “the truth”; asserting that another alleged victim was “not lying. It’s the truth. It’s what happened”; stating “we win. Clearly”; and arguing:
• “I’m not in the business of convicting innocent people, but this man is guilty.”
• Appellant is “without a doubt … guilty.”
Slip op. at 7-8. Judge Sparks explains that all of those arguments are “clear and obvious error.” Slip op. at 8. He then quotes the Supreme Court’s decision in Young:
The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.
Slip op. at 8 (quoting Young, 470 U.S. at 18–19) (emphasis added). Not stated, however, are the facts that a uniformed military prosecutor is the literal personification of the Government, that a court-martial panel is not a jury, and that the members of the panel that convicted Voorhees were all commissioned officers who owed their status and livelihoods to the Government.
All of that is not an exhaustive listing of the improprieties in this case, as Judge Sparks explains that the prosecution arguments “were riddled with egregious misconduct, much of which amounted to clear, obvious error.” Slip op. at 4. The defense, however, did not object to any of it. By failing to object, Voorhees’ defense counsel burdened him with the plain error test:
Plain error occurs when (1) there is error, (2) the error is clear or obvious, and (3) the error results in material prejudice to a substantial right of the accused. Thus, we must determine: (1) whether trial counsel’s arguments amounted to clear, obvious error; and (2) if so, whether there was a reasonable probability that, but for the error, the outcome of the proceeding would have been different.
Slip op. at 3 (marks and citations omitted). Furthermore, CAAF weighs three factors to determine if improper argument affected the outcome of the proceedings:
(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.
Slip op. at 8 (marks and citation omitted). Two of those three factors are met in this case, as Judge Sparks explains that “trial counsel’s improper argument was severe,” and “its persistence throughout final arguments was aggravated by the military judge’s total failure to offer any curative instructions.” Slip op. at 9. CAAF does not reverse, however, because “regardless of trial counsel’s improper arguments, there was ample evidence in support of Appellant’s convictions.” Slip op. at 11 (marks and citation omitted). Judge Sparks concludes:
Appellant’s court-martial was neither perfect, nor fundamentally unfair. See Darden, 477 U.S. at 183 (affirming the lower court’s finding that the appellant’s “trial was not perfect … but neither was it fundamentally unfair” (internal quotation marks omitted) (citation omitted)). Although trial counsel’s conduct reveals a lack of practical legal skills and a level of courtroom etiquette far below that which we expect of military officers, judge advocates, and all experienced trial counsel, we are “confident that the members convicted the appellant on the basis of the evidence alone.” Fletcher, 62 M.J. at 184. “There was, therefore, no prejudice to Appellant’s substantial rights.” Andrews, 77 M.J. at 403.
Slip op. at 12.
That conclusion is backstopped with discussions of two factors. First, Judge Sparks observes that “the record contains some indication that defense counsel’s failure to object may have been a tactical decision made as part of his case strategy.” Slip op. at 9 (marks and citation omitted). Put differently, Voorhees’ defense counsel did not object “because he wanted trial counsel to make a spectacle of himself.” Slip op. at 10. Furthermore, Judge Sparks notes that Voorhees’ defense counsel:
told the panel that trial counsel’s argument was merely an emotional appeal, made because the Government’s case was weak. He described trial counsel’s argument as “theatrics,” performed as a product of:
a lesson that’s taught at law schools across the country and in the military advocacy courses. And it is this: if you have the facts, argue the facts. If you have the law, argue the law. If you have neither, then literally the lesson is to pound your fist and try to appeal to the emotions of the panel.
Slip op. at 10. Yet that argument was also improper, because there was no evidence of the pound-your-fist lesson at the defense counsel’s law school nor was it any more appropriate for the defense to disparage the prosecutor than it was for the prosecutor to disparage the defense. But, it seems, in this case two wrongs (in the form of improper arguments from both sides) make a right.
Second, Judge Sparks notes the panel composition:
The panel at Appellant’s court-martial was comprised of colonels and lieutenant colonels. As senior officers, these individuals were uniquely situated to assess whether Appellant’s conduct was unbecoming under Article 133, UCMJ.. . . Trial counsel’s arguments were thus unlikely to impede these experienced officers’ ability to recognize conduct unbecoming and weigh the evidence against Appellant.
Slip op. at 10-11. In other words, without actually knowing that the prosecutor’s argument was grievous error, and without a trace of corrective action by the military judge (who allowed the trial to devolve into an excrement-flinging contest), the members divined the right result because, you see, they were colonels.
Those factors aside, CAAF’s ultimate conclusion that “there was ample evidence in support of Appellant’s convictions,” slip op. at 11 (marks and citation omitted), is the bottom line in this case. In every court-martial – and under any formulation of the plain error test – a legal error supports reversal only where the error “materially prejudices the substantial rights of the accused.” Article 69(a). But the error and the prejudice are different things. “Any trial error can be said to impair substantial rights if the harm is defined as being convicted at a trial tainted with fill-in-the-blank error.” Puckett v. United States, 556 U.S. 129, 142 (2009) (marks omitted). See also United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012) (“the showing of error alone is insufficient to show prejudice to a substantial right”). Accordingly, no matter how improper a prosecutor’s argument, it only matters if it affected the result, and CAAF’s conclusion that the prosecutor’s improprieties did not affect the result in this case means that “the law precludes [CAAF] from finding plain error.” Slip op. at 12.
Put differently: no harm, no foul.
Nevertheless, the opinion contains a lengthy “note on prosecutorial misconduct,” slip op. at 12-13, that declares, in part:
Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial. As we admonished in Andrews, “Military judges are neither mere figurehead[s] nor are they umpire[s] in a contest between the Government and accused;” they too have a “sua sponte duty to [e]nsure that an accused receives a fair trial.” 77 M.J. at 403–04 (alterations in original) (internal quotation marks omitted) (citations omitted). The military judge in Appellant’s case simply allowed trial counsel to ramble on with his improper argument. Similarly, although defense counsel’s failure to object appears to have been a conscious and tactical choice in the instant case, we remind all defense counsel they “owe[s] a duty to the[ir] client[s] to object to improper arguments early and often.” Id. at 404.
This case aside, the consistent flow of improper argument appeals to our Court suggests that those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct. As superior officers, these individuals should remind their subordinate judge advocates of the importance of the prosecutor’s role within the military justice system and should counsel them to “seek justice, not merely to convict.” Fletcher, 62 M.J. at 182 (internal quotation marks omitted) (citation omitted).
“Every attorney in a court-martial has a duty to uphold the integrity of the military justice system,” and multiple experienced attorneys failed to do so here. Andrews, 77 M.J. at 404.
Slip op. at 13 (modifications in original). But since CAAF is unanimous in its conclusion that the trial in this case was not fundamentally unfair, slip op. at 12, it’s unlikely that any prosecutor, military judge, or supervisor will see cause for alarm. CAAF’s conclusion that the convictions in this case were supported by “ample evidence,” slip op. at 11, surely means that the integrity of the military justice system is intact, particularly since CAAF finds similarly-improper arguments to be harmless on an almost annual basis. See, for example, United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page) (improper argument harmless); United States v. Sewell, 76 M.J. 14 (C.A.A.F. Feb. 1, 2017) (CAAFlog case page) (same); United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page) (same plus prosecutorial incompetence); United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (CAAFlog case page) (same but in sentencing).
And those are just the cases that CAAF agreed to review. As the court recently explained in United States v. McGriff, __ M.J. __ (C.A.A.F. Jun. 12, 2019) (per curiam) (CAAFlog case page), denial of review is not an endorsement of the CCA’s decision. In other words, even though CAAF denies review in the vast majority of cases – so many that it didn’t fill its oral argument calendar this term or last term or the term before that – it recently went out of its way in McGriff to explain that courts-martial may nevertheless be rife with errors. Considering that, it’s hard take seriously the notion that a prosecutor’s overzealous argument in a case with ample evidence of guilt poses any threat to the integrity of the military justice system. It’s also hard to see the note on prosecutorial misconduct as anything but saber rattling; a mere repetition of CAAF’s “customary admonition” against prosecutorial misconduct. Sewell, 76 M.J. at 21 n.3 (Ohlson, J., dissenting).
As for the mens rea issue, CAAF also reviews that for plain error because there was no objection at trial (a common theme in this case). Voorhees’ brief argued that:
It is reasonable to apply this Court’s holdings in Gifford and Haverty to Article 133, because if an officer engages in conduct that he or she thinks is lawful and not unbecoming, or is not at least reckless with regard to whether a reasonable person would find that conduct to be unbecoming, that officer has not committed a crime.
App. Br. at 33 (link). Article 133 is silent as to mens rea, and so CAAF must determine “that mens rea which is necessary to separate wrongful conduct from innocent conduct,” and Judge Sparks explains that “a statute’s silence can be indicative of a general intent scienter.” Slip op. at 15. In this case:
a general intent mens rea would require only that Appellant intended to commit the conduct alleged in each specification—i.e., making inappropriate comments and massaging his subordinate’s back. It was up to the panel to determine whether Appellant’s acts constituted conduct unbecoming.
Slip op. at 16 (citation omitted). CAAF holds that mere general intent is sufficient:
Because “there is no scenario where [an officer] who engages in the type of conduct” Appellant engaged in “can be said to have engaged in innocent conduct,” we infer a general intent scienter from Congress’s silence. Caldwell, 75 M.J. at 281. “We base our conclusion on the unique and long-recognized importance” of an officer’s behavior “in the United States armed forces, and the deeply corrosive effect that [indecorous behavior] can have on the military’s paramount mission to defend our Nation.” Id.
Slip op. at 16 (modification in original). The irony in highlighting the deeply corrosive effect of indecorous behavior by officers is, however, totally lost.
• First AFCCA opinion
• Second AFCCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (Gov’t Div.) brief
• Blog post: Argument preview
• Oral argument audio (wma)(mp3)
• CAAF opinion
• Blog post: Opinion analysis