Here is a link to the order list, dated today, from the Supreme Court’s conference this past Monday. There are no orders in any of the six military justice cases considered in the conference, and so all were presumably denied certiorari. The six cases are:

• Finch v. United States, No. 13-1440 (SG waived response; pending conf. on Sep. 29) (CAAFlog case page)
• Hornback v. United States, No. 13-1533 (SG waived response; pending conf. on Sep. 29) (CAAFlog case page)
• Manciagonzalez v. United States, No. 14-5146 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)
• Hatley v. United States, No. 14-5131 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)
• Newton v. United States, No. 14-5284 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)
• Swiger v. United States, No. 14-6021 (jurisdictionless pet.; SG waived response; pending conf. on Sep. 29)

The cert petition in Hornback (CAAFlog case page) is available here. The question presented is:

When a prosecutor commits persistent and severe misconduct, are a judge’s curative instructions insufficient to neutralize the misconduct (as the Eleventh Circuit has held) or do the instructions remain an effective antidote (as the U.S. Court of Appeals for the Armed Forces has held)?

Page 21 of the brief takes something of a shot at the NMCCA:

On appeal, the U.S. Navy-Marine Corps Court of Criminal Appeals (N-M.C.C.A.) affirmed. The opinion is reproduced at App. 31a. Adopting a laissez-faire approach to prosecutorial misconduct, that court assumed without deciding that it occurred. It then tested for prejudice and found no harm.

Of the Eleventh Circuit, pages 23-24 of the brief explain:

Nearly sixty years after Berger, the U.S. Court of Appeals for the Eleventh Circuit addressed a similar, persistent form of prosecutorial misconduct. See generally United States v. Crutchfield, 26 F.3d 1098, 1100 (11th Cir. 1994) (observing a record “replete with examples of unquestionable prosecutorial misconduct.”). The prosecutor there, as in Petitioner’s case, engaged in “[s]everal lines of questioning” that elicited irrelevant and improper character evidence. Id. Also there, like here, “the record reflect[ed] numerous instances in which the prosecutor simply ignored the court’s rulings on relevancy and improper character evidence objections.” Id. at 1102. Consistent with Berger’s special concern for persistent misconduct, the Eleventh Circuit opined that “[w]hen improper inquiries and innuendos permeate a trial to such a degree as occurred in this case, we do not believe that instructions from the bench are sufficient to offset the prejudicial effect suffered by the accused.” Crutchfield, 26 F.3d at 1103 (emphasis added). Concluding that “a jury cannot always be trusted to follow instructions to disregard improper statements[,]” id. (citing United States v. McLain, 823 F.2d 1457, 1462 n.8 (11th Cir. 1987)), the Eleventh Circuit then reversed and remanded for a new trial.

Of CAAF’s decision, page 26 of the brief outlines a moral hazard:

[T]he [CAAF] majority ultimately returns to the curative instructions, underscoring their dispositive nature. Id. at 161. (“[T]he fact that the panel acquitted Appellant of other, weaker drug charges indicates that it took the military judge’s instructions to disregard impermissible character evidence seriously.”). *FN 8.

*FN 8: In so finding, the lower court sends an unfortunate message to prosecutors; namely, these improper tactics are worth employing in a weak case. By eliciting improper evidence and making improper argument, prosecutors can turn a total acquittal into a partial one, understanding that result weighs in favor of affirmance on appeal. This danger is real, as the prosecutor here sought to admit improper evidence, arguing to the judge that it was found “to be harmless beyond a reasonable doubt after the appellate court looked at that.” App., infra, 41a. Putting a stop to this unfortunate message supplies an additional reason for this Court to grant this important petition.

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CAAF decided the Marine Corps case of United States v. Hornback, No. 13-0442/MC, 73 M.J. 155 (CAAFlog case page) (link to slip op.), on Thursday, March 6, 2014. The court “hold[s] that significant prosecutorial misconduct occurred, but that the error was ultimately not prejudicial,” affirming the judgment of the NMCCA and Appellant’s convictions. Slip op. at 1. But while CAAF is unanimous in its finding of error, it is sharply divided on the question of prejudice.

Judge Stucky writes for the majority. Chief Judge Baker and Judge Ohlson both dissent. Each writes separately, with the Chief Judge also joining Judge Ohlson’s separate opinion.

CAAF granted review of this case to determine:

Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in finding no material prejudice to Appellant’s substantial right to a fair trial after it assumed, without deciding, that trial counsel’s actions amounted to misconduct, and whether the military judge’s curative instructions sufficiently addressed the cumulative nature of such conduct as well as any corresponding prejudice in light of the factors identified in United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).

Appellant was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of using “spice” in violation of a general order, signing a false official statement, and larceny of military property, in violation of Articles 92, 107, and 121, UCMJ. He was sentenced to confinement for three months and a bad-conduct discharge.

But throughout the trial, “trial counsel repeatedly and persistently elicited improper testimony, despite repeated sustained objections as well as admonition and instruction from the military judge.” Slip op. at 13. The counsel is not identified by name (though, curiously, many of the witnesses are). But Judge Stucky dedicates 11 pages of his 18-page opinion of the court to a punishing account of the prosecutor’s failings. The conclusion he draws from these failures is a mixed-bag:

It matters not that trial counsel seems to have been merely inexperienced, ill prepared, and unsupervised in this case. Although one may wonder what her supervisors were doing during the course of Appellant’s trial, the prosecutorial misconduct inquiry is an objective one, requiring no showing of malicious intent on behalf of the prosecutor, and we find none here.

Slip op. at 14. However, turning to the question of whether this misconduct denied Appellant a fair trial, Judge Stucky gets more explicit:

The prosecutorial misconduct in this case was sustained and severe. Trial counsel attempted to elicit improper testimony from nearly every witness called during the Government’s caseiin-chief, and made arguably improper argument during her closing argument. She repeatedly appeared unable to either understand or abide by the military judge’s rulings and instruction during the two-and-a-half day trial on the merits.

Slip op. at 15. But the trial counsel’s apparent inability to “understand or abide” isn’t enough to win Appellant relief.

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

United States v. Hornback, No. 13-0442/MC (CAAFlog case page): Oral argument audio

United States v. Elespuru, No. 14-0012/AF (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Marine Corps case of United States v. Hornback, No. 13-0442/MC (CAAFlog case page), on Monday, January 13, 2014. The court will consider a single issue:

Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in finding no material prejudice to Appellant’s substantial right to a fair trial after it assumed, without deciding, that trial counsel’s actions amounted to misconduct, and whether the military judge’s curative instructions sufficiently addressed the cumulative nature of such conduct as well as any corresponding prejudice in light of the factors identified in United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).

Appellant was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of using “spice” in violation of a general order, signing a false official statement, and larceny of military property, in violation of Articles 92, 107, and 121, UCMJ. He was sentenced to confinement for three months and a bad-conduct discharge.

In the words of the NMCCA, “[A]ppellant faced a litany of offenses relating to wrongful use of prohibited substances, Basic Allowance for Housing (BAH) fraud, provoking speech, and communicating threats.” United States v. Hornback, No. 201200241, slip op. at 2 (N-M.Ct.Crim.App. Feb. 21, 2013). The trial counsel – identified in the public documents only as a female captain – presented the court-martial with a “tripartite theme” that tied together Appellant’s offenses as a web of “drugs, decay, and dishonesty,” and painted Appellant as “a criminal infection that is a plague to the Marine Corps” (words the trial counsel actually used in closing argument). App. Br. at 21. During the short two-and-a-half day trial (App. Br. at 34), the trial counsel committed acts that “Appellant briefs [as] twenty-two allegations of prosecutorial misconduct, fifteen of which are tied to improper character evidence and the remainder of which allege some form of hearsay or improper argument.” Gov’t Br. at 33. The trial counsel’s improper examination and argument drew multiple objections, provoked repeated admonitions from the military judge, and required numerous curative instructions to the members.

Appellant alleged “prosecutorial misconduct” at the NMCCA; a term that many judge advocates fear but that CAAF has said means only “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. Edmond, 63 M.J. 343, 347 (C.A.A.F. 2006) (link to slip op.). This definition lacks an element of fault, so even innocent mistakes, simple oversights, or just plain inexperience may result in a trial counsel’s conduct during a particular case meeting the harsh-sounding standard of “prosecutorial misconduct,” even in the absence of malevolent intent. Such appears to be the facts of this case, as the lengthy briefs to CAAF describe an inexperienced and seemingly-incompetent trial counsel whose culpability pales in comparison to her plainly absentee supervisors.

But rather than determine which if any of the trial counsel’s numerous blunders meet this definition of “prosecutorial misconduct,” the NMCCA merely assumed such error and looked instead for prejudice to Appellant. The CCA concluded that “even assuming without deciding that trial counsel’s actions amounted to misconduct, we find no material prejudice to the appellant’s substantial right to a fair trial.” Slip op. at 4. It is this conclusion that Appellant challenges at CAAF.

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