U.S. v. Fletcher, 62 M.J. 175

Military Justice Personnel: Prosecution Function: Trial Counsel

1. trial prosecutorial misconduct is behavior by the prosecuting attorney that oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense
2. while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused, i.e., resulted in prejudice
3. during the findings argument, the trial counsel offered her personal views, made disparaging comments about the accused and his counsel, and drew parallels between the accused’s case and the legal problems of various entertainers and public religious figures; these comments rose to the level of prosecutorial misconduct and the misconduct was prejudicial
4. the trial counsel may prosecute with earnestness and vigor -- indeed, she should do so; but, while she may strike hard blows, she is not at liberty to strike foul ones; it is as much her duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one

Trial Stages: Merits: Argument

1. during the findings argument, the trial counsel offered her personal views, made disparaging comments about the accused and his counsel, and drew parallels between the accused’s case and the legal problems of various entertainers and public religious figures; these comments rose to the level of prosecutorial misconduct, and the misconduct was prejudicial
2. it is improper for a trial counsel to interject herself into the proceedings by expressing a personal belief or opinion as to the truth or falsity of any testimony or evidence; when a trial counsel offers her personal opinions, they become a form of unsworn, unchecked testimony and tend to exploit the influence of the office and undermine the objective detachment which should separate a lawyer from the cause for which she argues; there are many ways a trial counsel might violate the rule against expressing a personal belief or opinion; one is by giving personal assurances that the Government’s witnesses are telling the truth; another is by offering substantive commentary on the truth or falsity of the testimony and evidence
3. improper vouching occurs when the trial counsel places the prestige of the government behind a witness through personal assurances of the witness’s veracity; improper vouching can include the use of personal pronouns in connection with assertions that a witness was correct or to be believed; prohibited language includes “I think it is clear,” “I’m telling you,” and “I have no doubt;” acceptable language includes “you are free to conclude,” “you may perceive that,” “it is submitted that,” or “a conclusion on your part may be drawn”
4. in this case, the trial counsel improperly vouched for the credibility of the Government’s witnesses and evidence in a trial for the wrongful use of cocaine where after discussing the testing methods and cut-off levels, she concluded “we know that that was from an amount that’s consistent with recreational use, having fun and partying with drugs,” she personally characterized the drug test results exhibit as “a perfect litigation package,” and she opined that one of the prosecution’s main witnesses was “the best possible person in the whole country to come speak to us about this”
5. improper interjection of the prosecutor’s views can also include substantive commentary on the truth or falsity of testimony or evidence; prosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on the defendant’s guilt and offering unsolicited personal views on the evidence
6. the trial counsel improperly interjected her personal views of the evidence and her personal opinion about the accused’s guilt at trial for the wrongful use of cocaine where she described the Government’s evidence as “unassailable,” “fabulous,” and “clear,” stated that it was clear from the urinalyses that he was “doing it over and over,” that he was “a weekend cocaine user,” and that he was “in fact guilty of divers uses of cocaine,” and described the accused’s defense as “nonsense,” “fiction,” “unbelievable,” “ridiculous” and “phony”
7. the injection of the trial counsel’s personal beliefs and opinions was plain and obvious error where over the course of her findings argument, there were more than two dozen instances in which she offered her personal commentary on the truth or falsity of the testimony and evidence, where she repeatedly inserted herself into the proceedings by using the pronouns “I” and “we,” where she put the authority of the Government and her office behind the prosecution’s witnesses, and where she bluntly concluded that the accused was in fact guilty
8. not only is it improper for a trial counsel to interject her personal views into a case, it is also improper for a trial counsel to attempt to win favor with the members by maligning defense counsel
9. the trial counsel improperly made disparaging comments about the defense counsel’s style and also made comments suggesting that the accused’s defense was invented by his counsel at trial for the wrongful use of cocaine where she openly criticized defense counsel by accusing him of scaring witnesses, cutting off witnesses, and suborning perjury from his own client, she referred to the accused’s arguments as “fiction” at least four times and called one of the accused’s arguments a “phony distraction”
10. the trial counsel’s attacks on defense counsel’s courtroom manner and integrity were plainly improper where she obviously attempted to win over the jury by putting herself in a favorable light while simultaneously making defense counsel look like a mean and nasty person who would say anything to get his client off the hook were plainly improper, she erroneously encouraged the members to decide the case based on the personal qualities of counsel rather than the facts, and her comments not only had the potential to mislead the members, but also detracted from the dignity and solemn purpose of the court-martial proceedings
11. disparaging comments by the trial counsel are improper when they are directed to the defendant himself; calling the accused a liar is a dangerous practice that should be avoided
12. the trial counsel improperly made disparaging comments about the accused’s credibility at trial for the wrongful use of cocaine where she told the members that the accused had “zero credibility” and that his testimony was “utterly unbelievable,” and where in rebuttal, she argued that the accused lied when questioned by his defense counsel; this language was more of a personal attack on the accused than a commentary on the evidence
13. the trial counsel’s improper characterization of the accused as a liar at trial for the wrongful use of cocaine did not rise to the level of plain error where the defense had opened the door for comment on conflicting testimony when the accused testified that he had never used drugs and then later admitted that he had experimented with marijuana; although the trial counsel should have avoided characterizing the accused as a liar and confined her comments instead to the plausibility of his story, her comments were not so obviously improper as to merit relief in the absence of an objection from counsel
14. when counsel argues facts not in evidence, or when he discusses the facts of other cases, he violates the principles that a court-martial must reach a decision based only on the facts in evidence and that arguments made by counsel are not evidence; however, there is an exception to this general rule; it is proper for a trial counsel to comment during argument on contemporary history or matters of common knowledge within the community; in the past, common knowledge has included knowledge about routine personnel actions, knowledge of ongoing military actions overseas, knowledge of the Navy’s “zero tolerance” policy for drug offenses, the existence in the United States of a “war on drugs,” and any other matter upon which men in general have a common fund of experience and knowledge, through data notoriously accepted by all
15. counsel are prohibited from making arguments calculated to inflame the passions or prejudices of the jury
16. the trial counsel’s references to religious figures and entertainers who had experienced legal problems in response to the accused’s good citizen defense improperly invited comparison to those cases, the facts of which were not admitted into evidence and which bore no similarity to the accused’s case; although references to public figures and news stories may be allowed, the specificity and detail of her comments went well beyond the generic comments; the trial counsel did not make generalized references to current events to give her argument some context; she made specific references to sensational events not in evidence in order to support her contention that the accused was guilty; although the accused’s good citizen defense may have opened the door to an appropriate response, the comments of the trial counsel were outside the bounds of fair comment
17. the trial counsel’s improper introduction of facts not in evidence at trial for the wrongful use of cocaine when she compared the accused’s case to those of religious figures and entertainers who had experienced legal problems was plain error; the trial counsel did not draw legitimate inferences based on the evidence or refer to matters within the common knowledge of the members; instead, she invited the members to accept new and inflammatory information as factual based solely on her authority as the trial counsel
18. in this case, when the three balancing factors to determine the impact of prosecutorial misconduct are weighed against one another, the balance is firmly in the accused’s favor; the trial counsel’s improper arguments in violating the rules against vouching for witnesses, offering of personal views, attacking opposing counsel, and arguing based on scandalous facts not in evidence were both persuasive and severe; the military judge’s curative efforts were minimal and insufficient to overcome the severity of the trial counsel’s misconduct; and the accused presented a good citizen/good character defense that could reasonably have raised questions in the members’ minds about the strength of the prosecution’s case; accordingly, the trial counsel’s misconduct was materially prejudicial to the accused’s substantial rights under both Article 59(a) and the plain error doctrine

Trial Stages: Merits: Instructions › Generally

1. when the trial counsel injected improper argument into her argument on findings, the trial judge should have interrupted the trial counsel before she ran the full course of her impermissible argument; corrective instructions at an early point might have dispelled the taint of the initial remarks; on the facts of this case

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused, i.e., resulted in prejudice
2. where the defense counsel objected to comments made during the prosecution’s findings argument, an appellate court will review them for prejudicial error
3. failure to object to improper argument before the military judge begins to instruct the members on findings constitutes waiver; in the absence of an objection, an appellate court reviews for plain error; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused
4. in this case, trial counsel’s open criticism and personal attack upon defense counsel was error; because the error was properly preserved by objection, it is tested for prejudice under Article 59(a); in addition, trial counsel’s arguments that vouched for evidence, injected unsolicited personal views of the evidence and the accused’s guilt, suggested that the defense was a fabrication, and introduced facts not in evidence were plain and obvious error; because there was no objection to these plain and obvious errors, they are tested under the plain error doctrine to determine whether they resulted in material prejudice to a substantial right of the accused
5. 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; in assessing prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial
6. to determine the impact of prosecutorial misconduct on a trial, the best approach 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
7. prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone
8. indicators of the severity of prosecutorial misconduct include (1) the raw numbers -– the instances of misconduct as compared to the overall length of the argument, (2) whether the misconduct was confined to the trial counsel’s rebuttal or spread throughout the findings argument or the case as a whole; (3) the length of the trial; (4) the length of the panel’s deliberations, and (5) whether the trial counsel abided by any rulings from the military judge