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.

Case Links:
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

46 Responses to “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”

  1. Defense Wizard says:

    Folks, CAAF is way off on this one. He did nothing wrong. Would a person who travels for work 200-250 days a year do something wrong?!?!?!?

  2. Kafka, Esq. says:

    The Vorhees opinion is to Government Trial Divisions as the Mueller Report is to Congress.  And in both situations, you can almost feel the breeze from the collective shrug.

  3. bromider says:

    Slip op. at 12-13:
     

    Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial.
     

    Surely, by that blip, CAAF didn’t mean to imply that the TJAG who certified, assigned, and controlled the very livelihoods of the TC, the military DC, the trial judge, the appellate judges, and the SJA who reviewed this case, is to blame?
     
    Right?  That would be crazy talk.  Wouldn’t it? 
     
    I mean… if someone were to suggest that TJAG should be held responsible for permitting such a unflinching pattern of willful dereliction of duty by every subordinate that touched this case, then that might be a good reason for that TJAG to be fired.  
     
    After all, an infantry general who permitted such incompetence and institutional cowardice to fester and grow so thoroughly in the ranks probably wouldn’t be retained in command?  Would they?  I’m guessing not.
     
    But, that’s how we treat real military officers.  We can’t have that sort of accountability in the JAG Corps.  No, we can’t act like these are real military officers.  They’ve got to be treated like they’re babies – middle-aged babies entrusted to carry the full weight of the government’s power.  But, to be coddled and protected nonetheless.  Like some super special snowflake.
     
    But, just maybe, if we’re not going to treat JAGs like real officers, perhaps we ought to at least treat them like lawyers.  You know, treat them like they are actually professionals who have a license they ought to be worried about.
     
    That might be nice, for a change.
    Or, maybe, instead, CAAF can just continue to whine about prosecutorial misconduct while doing absolutely nothing about it. 
     
    That’s a good look, ain’t it?
     
    I don’t know which institution comes out looking more impotent by this opinion: CAAF, or the Air Force JAG Corps.  This doesn’t project strength.  It projects amateur hour in a system of kangaroo courts.  From the trial level all the way up to the highest court in the system.

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

    Apparently improper argument got a sexual assault conviction thrown out for factual insufficiency.  How is that not prejudice?
     
    The flood would dry up to a trickle if CAAF actually DID something about it.

  5. David A. says:

    Does prosecutorial misconduct—grievous, severe—constitute conduct unbecoming an officer and a gentleman?
     
    should this misconduct form the basis of an ethics complaint?

  6. Anonymous says:

    Apparently the only time that the CAAF will reverse anything is when the CA writes a letter to them. What a joke.

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

    David A., I would say the conduct forms the basis for court-martial charges.

  8. stewie says:

    I know folks are mad at CAAF, but to me the next step and real solution is to report this conduct to the attorney’s state bar.
    Even if the evidence was, as CAAF ruled, so strong as to overcome the improper argument, the improper argument still remains, and it can still be reported. In fact, you have an appellate court ruling that the argument was improper, and was not just improper but “severe(ly)” improper.
    Seems like pretty strong evidence to submit to the state bar.

  9. Anonymous says:

    Judging by his LinkedIn profile he spent 1 year as DC and 5 years as an SVC/STC. Not really surprised by his egregious conduct then.

  10. Zachary D Spilman says:

    But which attorney should be reported?

    The trial counsel, for the “[prosecutorial] misconduct [that] amounted to grievous error”? Slip op. at 8. That’s the easy answer, sure, but it’s hardly an easy case for a disciplinary body. An early question will be whether CAAF’s use of the term grievous error isn’t hyperbolic considering that the court found no reasonable probability that, but for the error, the outcome would have been different. Another question will be whether CAAF’s finding of error is even correct (the Air Force CCA, after all, found otherwise).

    How about the military judge, who “simply allowed trial counsel to ramble on with his improper argument”? Slip op. at 13. The military judge also allowed the defense counsel to respond in kind, which (as I wrote above) let the trial to devolve into an excrement-flinging contest. But there are serious adverse consequences to disciplining judges for making the wrong call, starting with the fact that it will discourage judges from judging.

    What about the defense counsel, who “st[ood] by and allow[ed] trial counsel’s improper argument to proceed”? Slip op. at 9-10. Sure, CAAF sees a possibility that not objecting was a tactical decision, but there’s no evidence that Voorhees was part of any decision to exchange facts and law for excrement-flinging (as if that’s a defensible choice in any criminal trial). Isn’t failing to defend your client’s rights just as bad as infringing on the rights of your opponent?

    Or maybe supervisory counsel should be reported? After all, CAAF worries that “those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct.” Slip op. at 13. But we will have to determine how high up the chain to go. Undoubtedly there are a few dozen Democrats in Congress who will blame the President.

    Ultimately, I think calls for professional discipline in cases like this are badly misplaced. As I wrote four years ago:

    there is a big difference between a stupid legal argument and an unethical or criminal legal argument. Even the best lawyers make mistakes – sometimes big mistakes – and it is simply not unethical for an attorney to make a bad argument, or even to persist in that argument beyond the bounds of sensibility.

  11. Anonymous says:

    Anyone that knows the MJ isn’t surprised to see her name on the opinion where she didn’t reign in the STC since she’s a career Government Hack.

  12. Anonymous says:

    The trial counsel named in the opinion is very well respected in Air Force circles.  He’s been a Circuit Trial Counsel (Senior Trial Counsel) for like six years, and this case happened like five years ago.  Clearly an error early in his career.  But you won’t find a trial counsel that is as well liked by all those involved in military justice (TCs, DCs, SVCs, MJs, etc) for his integrity, skill and personality.  You can talk about ethics all you want, but this guy is not a worthy target of your ridicule.

  13. Vulture says:

    “But which attorney should be reported?”
     
    How about the five that signed there name to this opinion?

  14. Vulture says:

    …their…

  15. Anonymous says:

    This case happened barely two years ago, not “like five years ago.” And had he been an STC for six years, he should’ve known better.
     
    https://www.afjag.af.mil/Portals/77/documents/CM_Summaries/Court-Martial_Summaries_(Apr_17).pdf?ver=2017-05-23-083258-417

  16. Anonymous says:

    Disregard, apparently that was the retrial.

  17. stewie says:

    The attorney who made the comments Zach. Let the state bar decide if those comments warrant any action or not. If it’s a hard case, well, that’s what they get paid to decide.
     
    CAAF answered your question…this wasn’t just a bad argument. This was an argument that was “severe misconduct.”
     
    The DC didn’t object so to me that gives the MJ enough cover. Now, were I the MJ, I would have shut it down immediately, and if he persisted, then his argument is done and finished right there. Your turn defense. There’s no right to a government closing argument. The DC may have thought it was tactically wise to see if the TC did enough to torpedo a case that was otherwise a loser for his client.
     
    Again, CAAF calls it “misconduct.” Not “a stupid legal argument.” So, seems to me, that’s enough to make a call to the State Bar and let them figure out what, if anything, to do with it.

  18. Ed says:

    Zach
    there is a big difference between a stupid legal argument and an unethical or criminal legal argument. Even the best lawyers make mistakes – sometimes big mistakes – and it is simply not unethical for an attorney to make a bad argument, or even to persist in that argument beyond the bounds of sensibility
     
    Up to the last clause you are correct. I suggest under the facts of this case the TC went beyond that. As Stewie says let the State Bar figure it out.

  19. J.M. says:

    When is the last time a state bar did anything serious to a mil lawyer?
    When is the last time a mil lawyer faced ANY negative career impact over something like what Captain (probably Major now) Traeger did? Was anything done about the lawyers that conspired to have a judge they had a personal dislike for removed from cases? 
     

  20. Robert Lyons says:

    Non-Lawyer, avid reader, Chaplain opinion.  This case was not that hard – just re-sentencing on “conduct unbecoming of an Officer and gentleman.”  In reading the case, part of the misconduct was asking others about their undergarments.  Heck, asking people about their underwear is “conduct unbecoming of a kindergartener.” Too easy of a case to get the guy booted – why all the bluster? And why put your career and law license under the microscope?

  21. Anonymous says:

    The trial counsel named in the opinion is extremely well respected in Air Force circles.  He’s been a Circuit Trial Counsel (Senior Trial Counsel) for like six years, and this case happened like five years ago.  Clearly a mistake made early in his career.  But as an Air Force JAG myself, I’ll say that you’re unlikely to find another trial counsel as recognized (by TCs, DCs, MJs, SVCs, etc) as well known for his integrity, skill and personality as this one.  Y’all can take about ethics all you want, but this guy is not a worthy target of your uninformed ridicule.

  22. Anonymous says:

    *talk

  23. Zachary D Spilman says:

    This case was not that hard – just re-sentencing on “conduct unbecoming of an Officer and gentleman.”

    The prosecutor’s arguments at issue in CAAF’s opinion occurred at the original trial, Robert Lyons, not at the sentence rehearing.

    There were addressed by the CCA in its first opinion, in 2016.

  24. stewie says:

    That’s nice that he is well-respected. But this isn’t simply “clearly a mistake.” It’s severe misconduct.
    I mean, don’t take my word for it, CAAF ruled it was.
    So explain to us what information we are missing that makes us uninformed about this incident?
     

  25. Ed says:

    Anonymous
    Being a respected lawyer and generally having integrity is not a defense to an ethical violation. It may be mitigation to punishment

  26. Morpheus says:

    Don’t most state bar rules contain a provision that requires a lawyer to report ethical violations?  Does that mean every lawyer and judge (including CAAF judges) are in violation of that rule?  

  27. Philip D. Cave says:

    It is improper for a trial counsel to interject herself into the proceedings by expressing a “personal belief or opinion as to the truth or falsity of any testimony or evidence.” United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980) (quoting ABA Standards, The Prosecution Function, § 5.8(b) (1971)); see also United States v. Knickerbocker, 25 C.M.A. 346, 2 M.J. 128, 129-30, 54 C.M.R. 1072 (C.M.A. 1977). When a trial counsel offers her personal opinions, they become “‘a form of unsworn, unchecked testimony and tend to exploit the influence of [the] office and undermine the objective detachment which should separate a lawyer from the cause for which she argues.'” Horn, 9 M.J. at 430 (quoting ABA Standards, § 5.8(b), Commentary at 128).
    United States v. Fletcher, 62 M.J. 175, 181 (C.A.A.F. 2005).

    The federal circuit courts are in agreement that improper vouching occurs when the trial counsel “places the prestige of the government behind a witness through personal assurances of the witness’s veracity.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (citations omitted).

    Id.

    Improper interjection of the prosecutor’s views can also include “substantive commentary on the truth or falsity of testimony or evidence.”

    Id.

    Not only is it improper for a trial counsel to interject her personal views into a case, it is also improper for a trial counsel to attempt to win favor with the members by maligning defense counsel.

    62 M.J. at 181.

    Disparaging comments are also improper when they are directed to the defendant himself. For example, this court has said that calling the accused a liar is a “dangerous practice that should be avoided.”

    Id

    It is also well established that arguments made by counsel are not evidence. Clifton, 15 M.J. at 29. “When counsel argues facts not in evidence, or when he discusses the facts of other cases, he violates both of these principles.”

    Id.
    My simple NEXIS search shows 162 cases citing Fletcher, of which 35 were prior to Voorhees’ trial.
    Since Fletcher (and before Voorhees’ trial), if I went to the JAG school training materials would I find a discussion of Fletcher and similar cases?
    In October 2013, AFCCA decided United States v. Pioiunek, 72 M.J. 830 (A.F. Ct. Crim. App. 2013).
    In May 2014, CAAF decided the Air Force case of United States v. Frey, 73 M.J. 245 (C.A.A.F. 2014)–an improper argument case.
    In June 2014 AFCCA decided Witt (a death penalty case in which there is, admittedly, passing discussion of improper sentencing argument). AFCCA also decided United States v. Cron, 73 M.J. 718 (A.F. Ct. Crim. App. 2014).
    In July 2014, AFCCA decided United States v. Williams, No. 38255, 2014 CCA LEXIS 392 (A. F. Ct. Crim. App. Jul. 9, 2014) (unpub.).
    In August 2014, the AFCCA decided United States v. Spielman, No. 38285, 2014 CCA LEXIS 558 (A. F. Ct. Crim. App. Aug. 1, 2014) (unpub.).
    In October 2014, the AFCCA decided United States v. Bowser, 73 M.J. 889 (A. Ct. Crim. App. 2014) and a few other similar cases.
     
    Voorhees was tried 10 years after Fletcher and some months after the above cases from AFCCA / CAAF (and the other Services), so the opinions would have been available for perusal, mentioned in training materials, discussion in advocacy training?
     
    Voorhees appears to be proof beyond doubt for why those red and tan books gather dust. The cases above suggest that any trial counsel or their supervisor had to know that AFCCA was getting a lot of cases complaining about improper argument.
     
    What lessons could have been taken away from that? One could be that you can get away with improper argument if the accused is really, really, really, guilty. Another could be that there’s a training and leadership issue going forward.
     
    Some have heard me say that, like it or not, it’s the duty of the defense counsel to police the prosecutors because they won’t police themselves. CAAF as much as said that.  In other words, it’s your fault, defense counsel not the government that they did or said things prejudicial to the defense–you see that way the system doesn’t have to look itself in the mirror, it blame’s defense counsel.
    Why is it that the defense counsel is faced with being squeezed between Scylla and Charybdis and having to decide, in a millisecond, should I object, when trial counsel has had weeks (or longer) to plan and write their closing argument?
    Alright, rant over going to the garden, got some pruning to do.

  28. Anonymous says:

    This argument was way beyond the bounds of a stupid legal argument. To suggest otherwise is both troubling and absurd. CAAF specifically found that his personal attacks on defense counsel, personal attacks on Appellant, and expressing his personal opinions, bolstering, and vouching were SEVERE forms of misconduct! They spent 10+ pages of their opinion addressing it. They even made note of the frequency and severity of his improper arguments throughout the various stages of the trial. Truly stupid legal arguments don’t get this much emphasis…suggesting this was just a slip-up is just as ridiculous as the appellate attorneys who tried to defend it before CAAF. This misconduct should immediately be reported to the bar. Leave it to them to decide what to do with it.
     

  29. stewie says:

    Well…yeah…if the accused is really, really guilty then an improper argument might not be enough to make the case go away…particularly if it’s a very serious crime.
     
    That’s not all that surprising or wrong. Otherwise, why do a prejudice analysis? Why not just say improper argument equals acquittal? You do the analysis.
     
    So to me that’s not the problem here. The problem is that there are no professional or military consequences for an attorney when an appellate court finds that attorney committed “severe misconduct.”

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

    The thing is he wasn’t “really, really guilty” of sexual assault, given that AFCCA set aside the conviction for factual insufficiency.

  31. stewie says:

    he was really really guilty of conduct unbecoming though. I just don’t think the answer to improper argument is automatic acquittal unless the test is met that the improper argument had an effect on the outcome. CAAF says it didn’t.

  32. Vulture says:

    Stewie.  Isn’t that the irony?  That improper argument would result in in a finding of improper conduct.  
    I’ll ask it again about CAAF, where is your leadership? 
    “Put supervisory jurisdiction to bed.” Airforce Government counsel argued for this in US v. Arness.  Now military justice is rudderless.

  33. Pontius says:

    It’s ironic that many defense counsel bemoan courts-martial sending their (guilty) clients to jail for ridiculously low sentences from few months to a few years for serious crimes like sexual assault, but are quick to call for a government JAG’s head for conduct which is not criminal, or even unethical.  Such is the case here.  At virtually any other time in the past no one would even think twice about what the TC said.  I doubt courts-martial during the time of Sherman, Mitchell, Patton, MacArthur, etc. would even bat an eye.  The defense community’s collective wailing is a symptom of a larger societal shift that prioritizes political correctness and feelings over war fighting, toughness, and grit.  If anything, we need more TC like this one who say it how it is.

  34. Justin C. Henderson says:

    I don’t mean to be a broken record, but why did Appellant retain the prejudice burden here?  Did I miss it, or did the court elsewhere hold that this strain of prosecutorial misconduct error does not violate the due process right to a fair trial?

  35. Ed says:

    Pontius
    The defense community’s collective wailing is a symptom of a larger societal shift that prioritizes political correctness and feelings over war fighting, toughness, and grit.
     
    I suggest that any political correctness(railroad someone accused of a 120) is on the side of the |TC and that one reason to fight is to protect our values including due process.  One can be very tough in war but very just in peace.

  36. Pontius says:

    Ed, you talk about values, due process, and accuse the TC of “railroading” this accused.  The only person who railroaded Maj Voorhees was Maj Voorhees himself.  Maj Voorhees reached out to no less than 3 subordinates, asking them what kind of underwear they wore and if they were interested in having sex with him.  Maj Voorhees does not deserve to wear the uniform and deserved to be convicted of his crimes. Plain and simple.  What does it say that CAAF has essentially said that the evidence of his deplorable, adulterous, and criminal actions was so strong, that it did not matter what anyone would have said during oral argument-this man was going to be convicted.
    Any panel member who is spineless enough to convict based on the TC’s language shouldn’t sit on the panel anyhow and shouldn’t be wearing the uniform.  Somehow we’ve gotten to the point where we are (theoretically) capable of shooting, bombing, stabbing, and killing to protect our country but can’t handle it if someone uses strong, direct, words.  Heck, it appears the words don’t even have to be strong anymore- just so long as they hurt our feelings.

  37. Vulture says:

    Pontius.
    US v. Gonzalez didn’t come up with a light sentence.  That was 22 years.  How could that kind of sentence have been sustained without the not-lesser-included offense of aggravated sexual contact?  There is no way it could have, not only with the other offenses that Gonzalez was convicted of.
     
    But you are on to something.  Since he was sooo concerned about having sex, plainly he didn’t want to wear the uniform.

  38. Kafka, Esq. says:

    Somehow we’ve gotten to the point where we are (theoretically) capable of shooting, bombing, stabbing, and killing to protect our country but can’t handle it if someone uses strong, direct, words.  Heck, it appears the words don’t even have to be strong anymore- just so long as they hurt our feelings.

    Pontius, can’t your same point be applied to the leadership that decided to prosecute Maj Voorhees?  After all, if I’m not mistaken he was basically convicted of using words that (understandably) hurt some of his subordinates’ feelings.  I doubt that in the time of Sherman, Mitchell, Patton, MacArthur and blah, blah, blah that someone like Maj Voorhees would be tried in a federal court (especially at a time of “war”) for what he did.  Taken out behind the woodshed, yes.  Discharged, yes.  But court-martialed and saddled with a federal conviction for the rest of his life?  I don’t think so.  I’m not saying Maj Voorhees doesn’t deserve to be punished somehow, just that your “liberal snowflake” argument cuts both ways … and it sure as hell wasn’t the defense community that started it.

  39. Anonymous says:

     
    Pontius,
     
    You lost all credibility when you said that the arguments CAAF found amounted to “egregious misconduct” weren’t even unethical. What a joke.
     

  40. Barney Greenwald says:

    Pontius,
     
     
    I agree that Voorhees intentionally placed himself in harms way by engaging in an adulterous one night stand with a subordinate.  He should have known that she would pull the rape card after she first reported that sexual contact occurred confessed that she cheated on her husband seven months after.  Had he acted as a married Officer should and been in his hotel room reading his bible or calling his wife, then he would not have been victimized by the Government, now would he?
     
    Where I see that he was victimized was by the Government who allowed him to be tried for rape on the facts contained in this Appellate opinion:  https://afcca.law.af.mil/afcca_opinions/cp/voorhees-38836.u_corrected_copy.pdf  How someone could believe that he was guilty beyond a reasonable doubt based on those facts requires the willful suspension of disbelief and a willful disregard of how things work in the world.
     
    Because the reality is that if he is not tried for rape, then the Government is going to have a hard time getting Voorhees to a GCM based on a bunch of inappropriate texts that really should have resulted in a show cause board.   I have argued in the past that allowing a GCM to proceed on a ridiculous rape allegation, so that you might improve your chances at sentencing or in getting a conviction on the other charges is a violation of a 5th Amendment right to a due process, i.e. a fair trial.
     

    When the court finds a lack of sufficient admissible evidence to warrant prosecution, this court must consider the effect, if any, on the legality and fairness of the proceedings and findings even though the charge may have been supported by probable cause.
     
    In the usual case, such a finding amounts to no more than an “abuse of discretion.” See Corbett v. Bordenkircher, 615 F.2d 722, 726 (6th Cir. 1980)(quoting United States v. Follette, 364 F.2d 305 (2d Cir. 1966), cert. denied, 385 U.S. 1016, 17 L. Ed. 2d 552 , 87 S. Ct. 733 (1967). Typically, such errors are harmless or require no more remedy than [**36]  dismissal of the offending findings and either a reassessment of the sentence or a remand for a sentence rehearing. See United States v. Sales, 22 M.J. 305 (C.M.A. 1986). However, HN23 just as misjoinder and multiplicity in charging may result in a denial of due process, so may the prosecution of unwarranted charges result in a denial of due process. See United States v. Lane, 474 U.S. 438, 446 n.8, 88 L. Ed. 2d 814 , 106 S. Ct. 725 (1986)(misjoinder); United States v. Baker, 14 M.J. 361, 365 (C.M.A. 1983) (multiplicity).
     
    The due process hazards inherent in such charging are clear: the mere allegation of a baseless charge can influence the finder of fact by suggesting that the accused is a bad character worthy of punishment. United States v. Baker, 14 M.J. at 365 (citing United States v. Middleton, 12 U.S.C.M.A. 54, 30 C.M.R. 54 (C.M.A. 1960). Likewise, it may induce cumulative consideration of the evidence of separate offenses and result in a finding of guilty which would not have resulted had the fact-finder considered the evidence separately. See Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85, 86 (D.C.Cir. 1962). In short, the sheer number of accusations may influence the fact-finder. United States v. Phare,  [**37]  U.S.C.M.A. 244, 45 C.M.R. 18, 22 (C.M.A. 1972)(quoting United States v. Bird, 30 C.M.R. 752, 755 (CGBR 1961)) In the case at bar, we find that the aggregation of legally and factually unsupportable charges has denied the appellant his fifth amendment right of due process.

    United States v. Asfeld, 30 M.J. 917, 929, 1990 CMR LEXIS 444, *35-37
     
    In Voorhees’ case, the members returned a finding of guilty for rape, which C.A.A.F. found was factually insufficient:
     

    It is obvious that the Government impermissibly joined the relatively minor charges of communicating indecent [**38]  language with unwarranted charges of substantially greater culpability. Because the members returned a finding of guilty to a charge not supported by competent evidence and another finding of guilty refuted by evidence introduced by the Government itself, we find that their deliberations were influenced by the sheer weight of accusations in the case and not by the evidence — or lack thereof — adduced at trial. Accordingly, we find that the appellant was denied a fair trial in violation of his fifth amendment right of due process.

     
    United States v. Asfeld, 30 M.J. 917, 930, 1990 CMR LEXIS 444, *37-38
     
    So, I might have argued in the present case that C.A.A.F. should reverse the conviction for the Article 133 offenses because Voorhees did not have a fair trial based on the fact that he faced a GCM for an unsubstantiated rape charge, which bolstered a finding of guilt on the other offenses, which was exacerbated by the STC’s severe misconduct in opening and closing arguments.
     
    How many cases have we seen where an Accused faces a BS rape charge, just to muddy up the Accused and possibly raise residual doubt about the acquittal so the Government can hopefully get some mileage at sentencing.  For example, Marine Major Thompsons’ Court-martial where he was accused of a specious rape charge, just so the Government could get a dismissal for fraternization on sentencing?  Fifth Amendment due process violation? What about Major Kit Martin who had a rape charge referred regarding his wife (although the SVP dismissed the charge the day before the Court-martial began) who was acquitted of sexual assault charges against her kids, but convicted of simple battery and a security violation where the Government got a dismissal and a few months in jail?  Would there have been a due process violation if the charge wasn’t dismissed? 
     
    Were they victims of overzealous prosecutors committing misconduct, or has that strategy been normalized in the military to the point where nobody really recognizes that such a strategy is a violation of an Accused’s constitutional right to a fair trial and the R.C.M. that requires offenses be handled at the lowest appropriate level in compliance with R.C.M. 306(b)? 
     
    (btw/ Great analysis, Zack!)

  41. stewie says:

    Pontius, let’s get a few things clear:
     
    1. You seem to be a big believer in following the rules. Me too! Clearly, Vorhees didn’t follow the rules and thus was punished. So, what is surprising to me is seeing someone as you who clearly believes following the rules matters, then turn around and say well the TC doesn’t have to follow the rules, because I don’t like Vorhees. Care to explain that dichotomy?
    2. You make a large deal about what CAAF found about Vorhees conduct. And they did find that! Kudos! Then you turn around and ignore what they found about the TC’s conduct, explicitly calling it “severe misconduct.” I’m perplexed, can you help me out there?
    3. Do you think due process and values only apply to the innocent (as determined by you)? It seems clear to me that if you thought the evidence was weak, you’d have a different outcome in mind. Which seems like neither due process or values.
    4. Finally, how does “political correctness” have anything to do with anything here? Other than as a buzzword you can employ so you can rail against what is clearly your favorite bogeyman…libruls!
     
    Thanks.
     

  42. everyone take a little breather says:

    These things are true: the accused behaved as a pig and was unbecoming of an officer. And, it was unprofessional for the trial counsel to call him a pig in open court in order to inflame the passions of the members. And, it was error for the military judge to not sua sponte put an end to trial counsel’s attempts to inflame. And, it was error for AFCCA to find no error. And, it was error for government counsel on appeal to argue that there was no error.
     
    All of those things are true. But, it is also true, as CAAF found, that they do not offset each other. 
     
    It is also true that none of those errors involve anything more than words. Quite a bit of vitriol has been heaped on these people for their words. That doesn’t mean the government should let error go: Responsible organizations impose consequences for willful misconduct of their agents, or else they are complicit in it. But, the task of imposing consequences doesn’t have to be done so angrily. That’s the point trial counsel lost sight of as he delivered his arguments to the panel in Voorhees. The institutional response to the errors of the government actors in this saga shouldn’t follow suit. Further, as it sets about to correct its wayward agents, the institution should do some soul-searching to ascertain whether bears some responsibility for the actions of its agents. Perhaps the institution was promoting such vitriolic argument? Perhaps that is why none of the government agents who saw or reviewed the argument found it objectionable.In any case: Anger doesn’t promote justice. Cool-headed deliberation does. Voorhees eventually got that on appeal. The same non-inflamed, careful and deliberate approach should apply to the resolution of the manifest errors of the government actors in this case – from trial counsel to the people wearing robes.

  43. stewie says:

    Whew…I mean I thought I was pretty calm in my posts. I was advocating a pretty calm result which was to either have the State Bar examine and rule on the conduct (giving the TC all due process) or having the supervisory chain address it (thus saving his legal career from any harm, if perhaps not his future military career).
     
    But apparently I was not cool-headed about it. I’m going to stick my head in the freezer for five minutes and come back.
     
    (I need more burgers. I should probably defrost in here)
     
    OK, I’m cool-headed now. Yep, still think all the same things.

  44. Vulture says:

    Anyone here ever wonder about what the guys wearing the robes have on underneath?
    Anyone here ever joke about it?  Giggled about the color of their underwear?
    Anyone here that wore one of those robes joke about it?
     
    I am Scott’s Irish by half.  It never offended me to hear someone talk about going commando-kilt.  So really, was this kind of ruling and conduct that it promotes worth it?  CAAF got this wrong, and since I don’t have Stewie’s patience:
     
    Before we talk about soul searching maybe we should have a plan to ensure that we don’t just look up our own asses.

  45. Vulture says:

    Happy Forth of July.

  46. Philip D. Cave says:

    Vulture, I do believe that’s the Firth time I’ve read you referring to the Forth.