Opinion Analysis: A sharply divided CAAF finds no prejudice from a trial counsel’s misconduct, in United States v. Short
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.