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.

The test for prejudice in a case like this is drawn from United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005), and involves a balancing of three factors: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.” Slip op. at 13 (quoting Fletcher, 62 M.J. at 184). Unsurprisingly, the majority finds that the first factor weighs in Appellant’s favor. However, Judge Stucky explains that the second two factors, and the balance of the analysis, are in favor of the Government.

First, the rather extraordinary curative measures employed by the judge weigh heavily:

the military judge appears to have left no stone unturned in ensuring that the members considered only admissible evidence in this case. He called multiple Article 39(a), UCMJ, sessions to prevent tainting the panel. He issued repeated curative instructions to the members, each time eliciting that they understood and would follow his instructions. He also issued a comprehensive instruction during trial counsel’s closing argument, again explaining that the members could not consider evidence that was the subject of a sustained objection for any purpose. The military judge acted early and often to ameliorate trial counsel’s misconduct.

Slip op. at 15. Next, Judge Stucky explains that the Government’s evidence of the larceny and false official statement was strong, and that “the evidence supporting the spice conviction was not as strong as that supporting the larceny and false official statement convictions, but it was substantial.” Slip op. at 17. And so, “Balancing these factors, we are confident that the members convicted Appellant on the basis of the evidence alone. The Appellant was not prejudiced by trial counsel’s misconduct in this case.” Slip op. at 18.

But Chief Judge Baker and Judge Ohlson differ “on the question of whether the trial counsel’s ‘significant,’ ‘repeated,’ ‘pervasive,’ ‘sustained,’ ‘persistent,’ and ‘severe’ misconduct materially prejudiced Appellant’s right to a fair trial. [We] believe it did.” Ohlson, J., diss. op. at 1 (joined by Baker, C.J.). Footnotes in each of the dissenting opinions raise the obvious questions about supervisory counsel:

It is hard to find fault with the military judge’s actions, especially in the absence of a motion for a mistrial. However, this case does prompt the question: at what point should a military judge sua sponte declare a mistrial or call in the supervising trial attorney?

Baker, C.J., diss. op. at 3 n.1. And:

The nagging –– if unspoken –– question in this case is, “Where was the chief of justice?” As noted by the majority, trial counsel appeared to be not only “inexperienced” but also “unsupervised,” and she “repeatedly appeared unable to either understand or abide by the military judge’s rulings and instructions.” The issue of why this trial counsel did not receive the level of supervision, guidance, assistance, instruction, and training that she so obviously needed is not a matter before this Court. However, I find it appropriate to note that the responsibility to protect a servicemember’s constitutional right to a fair trial does not rest solely with the lone trial counsel advocating in the courtroom; it extends to the chief of justice and to other supervisory officers as well.

Ohlson, J., diss. op. at 2-3 n.1.

Between these footnotes in the dissents, and the majority’s query of “what her supervisors were doing during the course of Appellant’s trial,” the role (and perhaps culpability) of supervisory counsel certainly has the court’s attention. It didn’t lead to relief for this appellant, against whom the evidence was strong and for whom the sentence was relatively light, but a weaker case will likely lead to a very different result.

Case Links:
• NMCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

18 Responses to “Opinion Analysis: United States v. Hornback, No. 13-0442/MC”

  1. k fischer says:

    Wow!  This article about the US v. Hornback decision is pretty harsh.  This is the first line:

    Memo to military prosecutors: You can repeatedly misbehave in court and still win a conviction.

    Read more here:
    Too bad Hornback wasn’t convicted of sexual assault…….

  2. RKincaid3 says:

    Perhaps the failure to charge a sex assault offense is another example of prosecutorial misconduct?  I wonder if Congress will notice this omission and over-react accordingly.

  3. RKincaid3 says:

    Of course, I was being facetious in my last post, just in case anyone missed it since I failed to use a little :) emoticon at the end.

  4. Bill Cassara says:

    Not the way to make the news.  I am curious (although I probably know the answer) whether her FITREP or that of her supervisor reflected what happened here.

  5. Charlie Gittins says:

    Bill:  I am betting there was no action taken by fitness report or otherwise.  They got the conviction, so it must have cool, right?  I wsih someone would name the TC though.  I’d want to know what I was working against in the event I ran across her, whether in the military or in some civil case.  I am wondering whether DC made a mistrial motion.  I would have kept making them every time the misconduct happened after the first clearly improper act by the prosecutor. 

  6. A. Hernandez says:

    What does it matter what her experience was?  What does that have to do with whether the  representative of the United States Government tainted the process in such a way that it violated the Constitutional rights of the accused.  Too bad the defense counsel  did not ask for a mistrial or for the judge to recuse himself  once he started coaching the TC (regardless of any good intentions he may have had).  I don’t remember the judge in the first Roger Clemens trial wondering whether the AUSA had been properly trained  when he declared a mistrial on the second day of testimony when the prosecutors showed excluded evidence.   

  7. Sea Lawyer says:

    The presumption that members follow a military judge’s instruction(s) must be the sacred cow of military justice.  The majority expressly notes this vaunted presumption in its opinion, despite the fact that no less than three circuits choose not to apply the civilian equivalent when there, like here, the misconduct permeates the entire trial.  Thank goodness for legal fictions. (sarc mark emoticon needed) 

  8. Peanut Gallery says:

    What is the threshold for how many times a judge can impose curative measures before it becomes an exercise in futility?  Isn’t it a bit like spraying perfume on a corpse?

  9. Bill Cassara says:

    Many years ago I saw a military judge sua sponte recess a case and require the government to get a second chair, because of issues much like this.  I haven’t read the entire ROT, so I don’t want to say which side got it right, but that is an awful lot of “do overs.” 

  10. Abe Froman says:

    I don’t know how the Marine Corps judges do it, but I know that many MJs see one of their roles on the bench is to mentor young counsel.  Perhaps this trial judge thought he was doing some officer training? Or, perhaps the MJ was trying his/her best to keep the whole thing from devolving into a kangaroo court in front of the members?  From my quick read, this seems like someone should have thrown in the flag much, much earlier.   
    I have seen MJs take over the trial guide script from trial counsel when they were not prepared for swearing in the members.  I have seen MJs help a defense counsel lay an appropriate foundation that they were clearly botching.  I have seen MJs order supervisory attorneys to be seated in the courtroom (and never leave) while some of their junior officers were in trial.  I have also seen some of them sit there like spectators and watch the carnage pile up.   

  11. charlie Gittins says:

    AH & Abe:  You are spot on regarding the coaching of trial counsel.  I had a standard objection when that accured and I was defense counsel:  “Objection, your honor to coaching counsel on proper foundation questions.  This is not a trial practice course, this is a criminal trial and the MJ role is not to coach counsel for either side.”  I’d get a dirty look and maybe a smack down on the record, but the judge generally played it straight after that objection.  I am wondering why there weren’t serial mistrial motions; the more there is error that the judge is trying to cure with instructions, the better the chance that she/he is going to figure out that it may be better to start over than get reversed.  I am disappointed with CAAF; this one called out for a bright line 50 or 4-1, not a 3-2 coin toss.

  12. ResIpsaLoquitur says:

    Haven’t seen this mentioned elsewhere: the AFDW commander is order a trial to be convened in that case in which Lt Gen Franklin found insufficient evidence.

  13. k fischer says:

    I don’t think we would have seen this opinion if this was an Army case with COL Donna Wright presiding.  There would have been one objection, and then one, maybe two, sua sponte instructions from the Court, then a 39a where her boss was brought in to find a replacement TC.  

  14. RKincaid3 says:

    RIL:  I saw that article last night and posted it.  I am as surprised as you about how little that AF development is being discussed.  Perhaps the subject is as dead as it was predictable?

  15. stewie says:

    I guess I did COJ wrong.  I was in the courtroom for nearly every trial, and I always had two TC on every case, even guilty pleas, and they at least practiced their closing, and gave me the gist of what their plan was at a minimum.  Thankfully, every TC I ever had was talented, reasonable, and already came in with good baseline skills (at least IMO) but I’d like to think I helped with giving guidance and being a sanity check.
    Seeing all of the apparently unsupervised TC makes me wonder what’s going on.  How do you send out a poor CPT untethered and without any guidance to do what is not an easy job without training and mentorship (or at the very least a co-pilot who can help–two new brains are better than one).

  16. Zeke says:

    And to think, some people – even people purportedly trained in our nation’s legal heritage – still believe a court-martial is not a kangaroo court…

  17. peanut gallery says:


  18. Sea Lawyer says:

    Something tells me the Supreme Court will be less than interested in a case centered on spice and BAH fraud.