CAAF decided the Army case of United States v. Short, 77 M.J. 148, No. 17-0187/AR (CAAFlog case page) (link to slip op.), on Friday, January 5, 2018. Reviewing various improprieties by the prosecution that prompted the defense to request a mistrial three separate times, CAAF concludes that those requests were properly denied because the trial counsel’s misconduct was not so severe that curative instructions were inadequate. But two judges dissent and would reverse the findings, concluding that the misconduct was severe, the instructions ineffective, and the evidence underwhelming.

Chief Judge Stucky writes for the court, joined by Judge Ryan and Senior Judge Erdmann. Judge Ohlson dissents, joined by Judge Sparks.

CAAF granted review to determine:

Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

“Prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon.” United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996). “It is not the number of legal norms violated but the impact of those violations on the trial which determines the appropriate remedy for prosecutorial misconduct.” Id. at 6. “In analyzing allegations of prosecutorial misconduct, courts should gauge 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) (marks and citation omitted). “[P]rosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that [CAAF] cannot be confident that the members convicted the appellant on the basis of the evidence alone.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014) (quoting United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)).

Sergeant (E-5) Short was accused of domestic violence against his wife. The prosecution sought to introduce evidence regarding the general nature of the marital relationship, the defense objected, and the military judge agreed with the defense and prohibited the prosecution from eliciting most of its desired testimony. But the trial counsel offered it anyway, over and over again. “To combat [that] improper testimony, the military judge took strong and repeated corrective action . . .” Slip op. at 3. That action included rebuking the trial counsel, warning the witnesses, and giving the members “several curative instructions which addressed the majority of Appellant’s sustained objections regarding M.R.E. 404(b).” Slip op. at 3.

The defense wasn’t satisfied, and so defense counsel requested a mistrial on three separate occasions. All were denied. Short was then convicted of three specifications of assault consummated by a battery and one specification of assault, and sentenced to a bad-conduct discharge.

Read more »

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

United States v. Short, No. 17-0187/AR (CAAFlog case page): Oral argument audio.

United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Short, No. 17-0187/AR (CAAFlog case page), on Tuesday, October 24, 2017, at 9:30 a.m. A single issue questions the propriety of the trial counsel’s closing argument in a case where the defense counsel did not object to the argument, but did make multiple sustained objections during the prosecution’s case:

Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

Sergeant (E-5) Short was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of simple assault and assault consummated by a battery, and was sentenced to a bad-conduct discharge. The convictions were based on allegations of domestic violence by Short of his wife (Short was acquitted of additional allegations), and the prosecution sought to introduce evidence regarding the general nature of the marital relationship. The defense objected and the military judge agreed with the defense, prohibiting the prosecution from eliciting most of its desired testimony.

Despite the military judge’s ruling, however, the trial counsel elicited improper testimony about the relationship. Short’s brief asserts that during the wife’s testimony, “there were six sustained hearsay objections, three sustained leading objections, one violation of the Section III disclosures, one violation of the Mil. R. Evid. 412 ruling, and nine violations of the Mil R. Evid. 404 ruling.” App. Br. at 8. More sustained objections occurred during the testimony of other prosecution witnesses and during cross-examination of defense witnesses. The defense repeatedly requested a mistrial, but those requests were denied. The military judge did, however, give numerous curative instructions.

Then, during closing argument, the trial counsel:

commented to the panel that SGT Short “stared at [Mrs. NS] for the entire afternoon while she gave that testimony.” (JA 446). Counsel then asked the panel to “[i]magine how uncomfortable and how terrifying it was to sit on that stand.” (JA 502).

App. Br. at 11 (marks in original). There was no objection to this argument.

The Army CCA reviewed Short’s case last year, affirming the findings and sentence in a per curiam opinion that is notable in two respects.

First, the CCA limited its review to the military judge’s actions, holding that “as a court of criminal appeals we grade the homework of the trial court, not the trial counsel.” United States v. Short, No. 20150320, slip op. at 3 (A. Ct. Crim. App. Nov. 17, 2016). This seems to run contrary to CAAF’s precedent that “look[s] at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial.” United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)

Second, the CCA reviewed the closing argument, to which there was no objection, for plain error (finding none). This is contrary to a more recent, en banc, decision of the same court holding that the failure to object to improper argument waives any error. See United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here), rev. granted on other grounds, __ M.J. __ (C.A.A.F. Oct. 12, 2017) (noted here). The Navy-Marine Corps court agreed, adopting the Army court’s reasoning on this issue.

Considering this, CAAF’s review will almost certainly reach beyond the facts of this case, touching on both the appropriate scope of a CCA’s review and the standard of review for argument in the absence of an objection at trial.

Read more »