CAAFlog » October 2016 Term » United States v. Sewell

CAAF decided the Army case of United States v. Sewell, 76 M.J. 14, No. 16-0360/AR (CAAFlog case page) (link to slip op.), on Wednesday, February 1, 2017. In an opinion that names the trial counsel but avoids direct criticism of his performance, a majority of CAAF finds that the evidence supporting the convictions is sufficient to overwhelm any impropriety in the trial counsel’s closing argument. But a pointed dissent finds serious errors and casts the counsel as a bad role model. CAAF affirms the findings and the sentence and the decision of the Army CCA.

Judge Ryan writes for the court, joined by all but Judge Ohlson who dissents in part.

Sergeant Sewell was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of six specifications of indecent conduct and one specification of assault with intent to commit rape. He was sentenced to confinement for one year, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA granted one month of confinement credit for dilatory post-trial processing but otherwise approved the findings and sentence without further discussion. CAAF then granted review of an issue personally asserted by Sewell, alleging prosecutorial misconduct:

Whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings.

The improper argument involved assertions about Sewell’s “criminal disposition or propensity” to which there was a sustained objection and a curative instruction, slip op. at 4-5, other arguments to which there were overruled objections that the majority do not fault, slip op. at 5 n.2, and alleged “improper vouching, references to facts not in evidence, and statements that purportedly inflamed the passions of the panel,” slip op. at 6, to which there was no objection at trial.

In her opinion for the court Judge Ryan finds that “some of trial counsel’s statements during argument were improper,” slip op. at 2, however she concludes that those improprieties were harmless in light of the evidence supporting the convictions:

Even assuming that trial counsel’s misconduct was severe and the military judge’s instructions were insufficient, we find the third Fletcher factor [the weight of the evidence supporting the convictions] dispositive.

Slip op. at 8. But Judge Ryan also identifies the trial counsel by name:

Appellant argues that the trial counsel, Lt. Col. Matthew McDonald, made improper arguments that prejudiced his right to a fair trial.

Slip op. at 4. This is generally considered to be a bad thing for the named attorney. It is also (by my recollection) the first time CAAF has named a trial counsel in connection with an allegation of impropriety since United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), our #4 Military Justice Story of 2013 Correction: United States v. Stellato, 74 M.J. 473 (C.A.A.F. Aug. 20., 2015) (CAAFlog case page).

Judge Ohlson, however, is even more blunt.

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Audio of today’s arguments at CAAF is available at the following links:

United States v. Sewell, No. 16-0360/AR (CAAFlog case page): Oral argument audio.

United States v. Pabelona, No. 16-0214/NA (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Sewell, No. 16-0360/AR (CAAFlog case page), on Wednesday, October 12, 2016, at 9:30 a.m. The case presents a single issue – raised personally by the appellant – asserting improper closing argument by trial counsel:

Whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings.

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Yesterday CAAF granted review of an issue raise by the appellant personally:

No. 16-0360/AR. U.S. v. Todd D. Sewell. CCA 20130460. Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted on the following issue personally asserted by the Appellant:

WHETHER THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER ARGUMENT ON THE FINDINGS.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

This is the third Grostefon issue granted this term; the first was in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), and the second was in United States v. Nieto, No. 16-0301/AR (discussed here). All three are Army cases.