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.

And on page 30 is a direct appeals for SCOTUS to exercise its supervisory power:

This case is therefore especially worthy of this Court’s supervisory power because it not only exhibits persistent misconduct, it exhibits a form of misconduct that is anathema to our legal system. As the United States Navy Board of Review once opined, “A studied effort to arouse passion and prejudice is characterized by repeated and persistent asking of improper questions to which the objections of the defense have been sustained.” United States v. Stockdale, 13 C.M.R. 540, 543 (N.B.R. 1953) (citing Beck, 33 F.2d at 114).

Prosecutors play a central role in the criminal justice system. That system will fail if prosecutors are not held to a high standard of integrity.

The brief ends by highlighting two special reasons the Court should grant the petition. First, on page 32, the brief explains:

[A]ll parties—including the court below—agree this prosecutor committed severe misconduct. The United States conceded misconduct at oral argument before the C.A.A.F, and the C.A.A.F. found accordingly.

Then, on page 34, the brief explains that:

The second good reason why Petitioner’s case presents an ideal, uncluttered vehicle for review is preservation. As detailed in the statement of the case, supra, the trial defense attorney preserved this issue, having lodged no less than fifteen objections to the prosecutor’s offensive misconduct. And those instances of misconduct that did not trigger a defense objection were still preserved by the trial judge, who, on several occasions, interrupted the prosecutor sua sponte to try to right her wayward ways.

Whether the Court calls for the views of the Solicitor General remains to be seen.

25 Responses to “The cert petition in Hornback”

  1. SgtDad says:

    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.”

    So, this was a deliberate effort by Trial Counsel to violate defendant’s rights?  And the Gov’t lest this slide?  The appellate courts let it slide? 
    Does this lawyer still have a license to practice?

  2. stewie says:

    Deliberate as in I know this is the rule, I know I’m wrong and I’m doing it anyways? No, I don’t think so.
    Extremely ignorant (kindly speaking)? Yes.
    I think this is a case of a TC with little training and little to no supervision (or very poor supervision) who apparently either didn’t understand the rules very well or thought she was ok so long as the MJ gave instructions.  Looking for prejudice is the correct path, and one can disagree as to whether there is prejudice here or not.
    But “getting away with it” is only solved through ethical/professional channels IMO, not through the courts as much.

  3. SgtDad says:

    Stewie —
    I hope you are right.  That said, the language I quote suggests “Deliberate as in I know this is the rule, I know I’m wrong and I’m doing it anyways … ” “Numerous” instances of TC ignoring the judge’s rulings.  That’s OK?
    I graduated law school in the 70’s.  I knew coming out that this sort of thing was wrong.
    And this is considered honorable for officer-types?

  4. Zeke says:

    And this is considered honorable for officer-types?

    There is no “honorable for officer-types.”  There is only one standard for honor, and this falls well short… Even if it happens to not be prejudicial.  Though, if an enlisted member repeatedly directly disobeyed instructions given by a superior the way this trial counsel disregarded judicial warnings, they’d be tarred and feathered by day’s end.  So, maybe this is “officer-type” consequences…

  5. stewie says:

    No it’s never ok to deliberately ignore a rule that you know is a rule and you know is wrong to ignore/violate.
    I’m not saying she should not have known, she should have, but there’s a reason we have supervisors for junior counsel.

  6. Zachary D Spilman says:

    I think the effort you’re talking about is captured in these two excerpts from the record of trial, both contained within the petition:

    [It was] determined to be harmless beyond a reasonable doubt after the appellate court looked at that.

    Br. at 41a (quoting R. at 166). Presumably this was the TC.

    It is still an error. I am not going to purposely make error in hopes that it is found harmless.

    Br. at 48a (quoting R. at 166). This was the military judge.

  7. SFC V says:

    I wish courts would generally exercise their power over the proceedings and hold those accountable when they violate orders of the court.  I have seen the other side of this where a defense attorney has repeatedly violated the orders of the court and nothing happens.   When the court issues an order and it is violated why not hold the wrongdoer in contempt and punish them directly.  Part of what makes the direct contempt power of the court so effective is the immediacy with which punishment can follow the wrongdoing. Courts are reluctant to use this authority which only emboldens some (I stress some) practitioners to push the envelope.
    I bend over backwards to follow the rules and I expect nothing less from others.   In front of a panel/jury is no time to try and skirt the rules.

  8. Mike says:

    Vinny always had to spend the night in jail when he violated the judge’s orders and was held in contempt; and he became a better lawyer bc of it. The two utes eventually were acquitted bc of those hard learned lessons. 

  9. Dew_Process says:

    Unfortunately, this problem is not limited to “junior” TC within the military.  But I agree that it’s caused in part by poor (or no) supervision, assuming that there are experienced litigators available to supervise or mentor young TC (and DC for that matter). But, there’s also an attitudinal problem – the failure to recognize that criminal prosecutions are not sporting events where the best (or “sharpest”) litigator should win.  The failure I thing begins with the JAG Schools collective failure to pound into their respective students’ heads that – as the saying goes – “The United States ‘wins’ whenever justice is done,” and that does not always mean getting a conviction, especially one unfairly obtained.
    For some comparative analysis of this, check out this article:
    Or, as a result of the now infamous Duke Lacrosse Team fiasco, a term describing what happened in Hornback has come into existence, i.e., he was “Nifonged!”  Prof. Paul Giannelli, takes a look at the issue here:

  10. stewie says:

    Well, it’s hard to find the line between having a healthy desire to win (because you don’t bring a case unless you believe it should win) and a win at all costs mentality.  I think the difference is one group follows the rules (discovery, etc) and the other group does not.
    The best litigators usually are on the defense side because they usually have more experience (not necessarily more talent).  Of course, because we don’t want career MJ folks (apparently) that experience more or less stops at the senior CPT stage, gets stale/lost, and then maybe you see COJs who come in having a year, maybe two of MJ experience, and thus aren’t really any more experienced than the TC they are supervising.
    Then they become DSJAs, and again, we aren’t talking 5-6 years of crim law experience, we are talking 3, maybe 4 max.  Depending on the jurisdictions they’ve been in, that’s not a ton of case experience. So poor supervision can also come from supervisors trying their best, but simply not having the requisite experience to know what right looks like or the fine line between zealous prosecution and overzealous.

  11. Zeke says:

    I know my view is old hat now, but you said the desire to win is “healthy” because “you don’t bring a case unless you believe it should win.”  I think that’s a proposition without any basis in the military justice system where the legal professionals lack any prosecutorial discretion and often are too inexperienced (as you aptly explained) to effectively and wisely exercise such discretion even if they did have it.  The fact that we think of a lawyer with 5-6 years of experience as being “experienced” is emblematic of just how woefully under-experienced and inadequately staffed we are.  I’ve got almost 7 years of justice experience now, on both sides, and at multiple levels, and I’d be a fool to claim that little bit of time toiling is somehow sufficient to make me suitable to exercise prosecutorial discretion over my fellow citizens unsupervised.  I think the lawyer ultimately responsible force weilding the government’s sword against its own citizens should be substantially more experienced, both as a lawyer, and as a human being, than most military attorneys can claim.  

  12. stewie says:

    There’s a difference between belief and reality.  Usually, you bridge that difference with experience.  I think the proposition on belief is more or less reality.  I don’t think most of the time there is no belief that you “should” win.  Whether you can/will win is a different story but I don’t think the standard is or should be that you have to believe that you will win.  I was fairly pessimistic on the government side with sex assault cases for example.  I don’t think my subjective pessimistic expectations should have governed which cases went forward.
    What I think SHOULD be the right answer though (aka what I believed happened) is a different story.  And I don’t see evidence that TC/SJAs are going forward on cases they think should be acquittals.  I’m sure it happens, but not in any great numbers.  They clearly could be wrong/inexperienced, but that’s different from being overzealous or unethical or viewing it all as just a sports competition.

  13. peanut gallery says:

    I sat through portions of this trial. The STC or military justice officer at the time, Maj Corey Pullig, sat right beside the TC through the trial. The problem is he was just as inexperienced in the courtroom. He did not have the abilitiy to provide her with any meaningful guidance. I don’t think this is a case of intentional, malicious wrongdoing but the TC/STC just didn’t know better. Inexperience and incompetence can be just as unethical. And refusing to realize that you are too inexperienced or incompetent is just as bad when someone’s livelihood and freedom is on the line. What upsets me more about the situation is the lack of intervention from the OIC of the law center at the time, LtCol Breven Parsons. He also sat through portions of the trial and saw what was going on. And if I remember correctly, he spoke with the judge during the trial. Instead of discussing the problems with the trial, they made small talk and talked about personnel assignments. I don’t know if they have but I hope that the STC and OIC of the law center provide this young TC with the top cover she deserves. IMO they are more responsible for what went so wrong than she is.

  14. DCGoneGalt says:

    Peanut Gallery:  The way for the OIC to handle it, if he was aware, would have been to address it with the TC/STC during the trial.  IMO it would have been inappropriate of the OIC to discuss it with the MJ during the case.  The small talk with the MJ doesn’t show an “out to lunch” mentality as I think it is reasonable to avoid any contact other than small talk with the MJ during trial.

  15. stewie says:

    Concur with DCGG.  Very first break you either pull that TC aside and give them an on the spot “counseling” with the STC present, or if you feel like the STC can handle it (or want to give them a shot to handle it) pull them aside immediately and let them do the “counseling” at the next break.  But some supervisor says ok, what’s your plan for the remaining witnesses? Do you understand that these questions you can’t ask? Etc, etc.

  16. SgtDad says:

    OK, I was just a SNCO, but I am 35+ years a lawyer, too.  DCGG & Stewie have it exactly right.  Heck, none of my officers would have put up with this stuff from any of their NCO’s, why here?
    Aside from the TC’s lack of any sense of honor, I am truly disturbed at the leadership here.  I am still in contact with some of my officers from long ago.  None of them, I think, would have let this slide for a nanosecond.  Shouldn’t the OIC also be counseling the STC on his lack of leadership?
    Another question:  Isn’t the MJ in charge?  If the MJ makes a ruling, right or wrong, isn’t the correct response “Aye, Aye, Sir?” 
    A dishonorable act does not become honorable just because you can get away with it.

  17. stewie says:

    Lack of honor? Eh, that’s a bit much don’t you think? Ignorance and inexperience are usually the right answer versus more nefarious answers in these situations.
    Sure, Yes Sir/Ma’am is the right answer to the judge, but if you don’t know enough to know what you’ve done wrong/doing, then you can keep making the same mistake later on without purposefully defying the MJ.

  18. Long time reader says:

    I can buy inexperienced and ignorant.  I guess my question is: this trial didn’t go straight through.  There were recesses, even short ones.  If the TC keeps getting shut down and can’t understand why or how to fix it, what was she doing during those recesses if not talking to her boss. Or if her boss didn’t know, the boss’s boss…or heck, another TC in the shop?  Most of us are forced to learn while doing and sometimes we don’t know there’s a problem until it occurs, but once it is recognized, ask the question!

  19. SgtDad says:

    I see your point and, having been a rookie once myself, have some empathy.  And, in my rookie days, I did some criminal prosecutions.  But hear me out.

    [It was] determined to be harmless beyond a reasonable doubt after the appellate court looked at that.

    TC here knew the line of questioning was unacceptable. She thought there would be no sanction for doing it, so therefore it was OK.  A dishonorable act does not become honorable just because you can get away with it.  An adult does not need a lot of “training” to know this. 

  20. stewie says:

    Sure, obviously though if she/they had that revelation, we wouldn’t have this case because she’d have stopped doing it. 

  21. Mike says:

    Which is why the My cousin Vinny approach works so well   If you hold the person in contempt or dismiss w prejudice word will spread and it becomes a teaching point at the schoolhouses. I guess this case is a teaching point now. Then again if the TC was set up for failure maybe contempt is too harsh. I wasn’t there nor have I read the transcript so I won’t say definitively if I think either sanction should have been imposed. Just my thoughts

  22. Dew_Process says:

    But, what about the MJ???
    After about the 3rd warning, gone unheeded – for whatever reason – most MJ’s would have (and should have) said, “We’re in recess for an 802!”  And at that point told the STC, “get your OIC/SJA in here now!”  And at that point, provided some on-the-spot trial practice education, along with a warning that any further “missteps” will most likely result in a mistrial.
    Somewhere along the line, the MJ needed to do more than just give a verbal warning imho.

  23. stewie says:

    True DP, plenty of places where the direct application of leadership could have cured this situation.

  24. SgtDad says:

    This case seems to show a failure on every level: TC misconduct, MJ not taking charge, STC not giving timely guidance, OIC not doing his CO thing, etc.  Sad, but all too human. Now that I see the systemic issues, Stewie’s defense of TC has more weight.

    Sure, obviously though if she/they had that revelation, we wouldn’t have this case because she’d have stopped doing it. 

    To answer Stewie directly: my concern is that TC did not have that “revelation,” but she sure as heck should have.  The pressures of trial for someone inexperienced can leave little mental room for these revelations, of course.  That said, the concept is pretty basic: A dishonorable act does not become honorable just because you can get away with it.  To an honorable person, that notion is instinctive.
    Reading all this makes me worry that the culture of this unit was (is?) such that this sort of argument is expected of TC, not discouraged.  It would explain the systemic failures.

  25. Dew_Process says:

    I just read the cert petition here.  There is a great opinion out of the 2nd Circuit from the end of May, United States v. CES, Inc., LINK to Opinion, here.  Start at page 25, for the litany of what happened, improper “bolstering” of snitches’ testimony by repeated (and objected to) references to “tell the truth” clauses in PTA’s.  The 2nd Circuit reversed the convictions as a result.
    Seeing as how this case isn’t scheduled for Conferencing until 29 SEP 14, citing to CES as “supplemental authority” may not be a bad idea under the circumstances.