Argument Preview: What to do about an award-winning prosecutor’s improper arguments, in United States v. Andrews
CAAF will hear oral argument in the Navy case of United States v. Andrews, No.17-0480/NA (CAAFlog case page), on Wednesday, February 28, 2018, at 9:30 a.m. The court granted review of a single issue:
The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?
Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.
Andrews admitted to the sexual encounter in a pretrial statement to military criminal investigators, however he claimed it was consensual. At trial he raised the defenses of consent and mistake of fact as to consent. Both sides presented evidence relevant to these defenses, but in closing argument the prosecution crossed the line.
Specifically, the Navy-Marine Corps CCA concluded that prosecutorial misconduct occurred during closing arguments when the assistant trial counsel called Andrews a liar, inappropriately mischaracterized Andrews’ statement to law enforcement, asserted that even Andrews’ defense counsel did not believe him, and misstated the law regarding capability to consent. Nevertheless:
while acknowledging that TC’s misconduct was severe, and assuming arguendo that the curative measures taken by the military judge were inadequate, we are “confident that the members convicted the appellant” of having sex with Ms. AB, while he knew or reasonably should have known that she was incapable of consenting, “on the basis of the evidence alone.” Sewell, 76 M.J. at *1415 ( citation and internal quotation marks omitted).
United States v. Andrews, No. 201600208, slip op. at 20 (N.M. Ct. Crim. App. Apr. 27, 2017).
At first look, CAAF’s grant of review appears to be limited to that finding of harmlessness. But the Navy-Marine Corps Appellate Government Division asks CAAF to look beyond it in two ways. First, the Government Division’s brief asserts that “failure to object to improper argument constitutes waiver,” Gov’t Div. Br. at 20, even though the NMCCA explicitly rejected this argument (discussed here), the Army CCA doubts it was right to accept this argument (discussed here), and CAAF will address its in a different case to be argued (by me) next month (grant noted here). Second, the Government Division disagrees with some of the CCA’s conclusions that the prosecution’s arguments were improper.
Nevertheless, in recent decisions CAAF repeatedly affirmed convictions despite conduct by prosecutors that “left much to be desired,” United States v. Short, __ M.J. __, __, slip op. at 5 (C.A.A.F. Jan. 5, 2018) (CAAFlog case page), where it amounted to “gross governmental misconduct,” United States v. Claxton, 76 M.J. 356, 361 (C.A.A.F. 2017) (CAAFlog case page), and even when “the prosecutorial misconduct . . . was sustained and severe.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (CAAFlog case page). That is largely because when reviewing prosecutorial misconduct, CAAF “gauge[s] the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Rodriguez-Rivera, 63 M.J. 372, 378 (C.A.A.F. 2006) (citations omitted).
Andrews’ brief, however, makes personal blameworthiness a significant aspect of this case.
CAAF granted review in two cases on Friday. The first is a Navy case:
No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
THE LOWER COURT FOUND SEVERE PROSECUTORIAL MISCONDUCT. THEN IT AFFIRMED THE FINDINGS AND SENTENCE, GIVING ITS IMPRIMATUR TO THE PROSECUTORIAL MISCONDUCT IN APPELLANT’S CASE. DID THE LOWER COURT ERR?
Briefs will be filed under Rule 25.
The NMCCA’s opinion is available here. The CCA found that the trial counsel committed prosecutorial misconduct in the form of improper argument by calling the appellant a liar, mischaracterizing the appellant’s statements to NCIS, asserting that the defense counsel did not believe the appellant, and misstating the law. But, applying the plain error test – because “the civilian defense counsel did not contemporaneously object,” slip op. at 7, something that the Army court recently held constitutes waiver of any error – the CCA found the improper arguments to be harmless.
The second is an Air Force case that is a Mitchell (CAAFlog case page) trailer:
No. 17-0504/AF. U.S. v. Hank W. Robinson. CCA 38942. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELL PHONE.
II. WHETHER THE AIR FORCE COURT ERRED IN HOLDING APPELLANT WAIVED OBJECTIONS REGARDING INVESTIGATORS’ EXCEEDING THE SCOPE OF APPELLANT’S CONSENT.
Briefs will be filed under Rule 25.