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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