U.S. v. Hornback, 73 M.J. 155

Military Justice Personnel: Prosecution Function: Misconduct

1. prosecutorial misconduct occurs when trial counsel oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense; 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
2. the presence of prosecutorial misconduct does not necessarily mandate dismissal of charges or a rehearing; 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
3. in determining whether prejudice resulted from prosecutorial misconduct, an appellate court will look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice inquiry requires the 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
4. 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
5. in this case, despite repeated sustained objections as well as admonition and instruction from the military judge, trial counsel repeatedly and persistently violated the RCMs and MREs by eliciting improper character evidence testimony related to the accused’s drug use generally, and such conduct constituted prosecutorial misconduct
6. the prosecutorial misconduct inquiry is an objective one, requiring no showing of malicious intent on behalf of the prosecutor
7. in this case, although the trial counsel’s misconduct was sustained and severe in attempting to elicit improper character evidence testimony related to the accused’s drug use generally from nearly every witness called during the government’s case-in-chief and in arguably making improper closing argument, despite repeated sustained objections as well as admonition and instruction from the military judge, appellant was not prejudiced, where (1) the military judge appeared to have left no stone unturned in ensuring that the members considered only admissible evidence in this case, calling multiple Article 39(a), UCMJ, sessions to prevent tainting the panel, issuing repeated curative instructions to the members, and providing 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, and (2) strong evidence supported the convictions for signing a false official statement and larceny, and the improper character evidence that trial counsel sought to elicit related to the drug offenses, not to the false official statement and larceny offenses; and although the evidence supporting the using spice conviction was not as strong as that supporting the false official statement and larceny convictions, it was substantial, to include two witnesses who testified they saw appellant smoking a substance that he identified to them as spice; furthermore, despite the clumsy attempts by the trial counsel to elicit improper character evidence testimony related to drug use generally, the 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where proper objection is entered at trial, an appellate court reviews alleged prosecutorial misconduct for prejudicial error
2. in determining whether prejudice resulted from prosecutorial misconduct, an appellate court will look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice inquiry requires the 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
3. in this case, although the trial counsel’s misconduct was sustained and severe in attempting to elicit improper character evidence testimony related to the accused’s drug use generally from nearly every witness called during the government’s case-in-chief and in arguably making improper closing argument, despite repeated sustained objections as well as admonition and instruction from the military judge, appellant was not prejudiced, where (1) the military judge appeared to have left no stone unturned in ensuring that the members considered only admissible evidence in this case, calling multiple Article 39(a), UCMJ, sessions to prevent tainting the panel, issuing repeated curative instructions to the members, and providing 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, and (2) strong evidence supported the convictions for signing a false official statement and larceny, and the improper character evidence that trial counsel sought to elicit related to the drug offenses, not to the false official statement and larceny offenses; and although the evidence supporting the using spice conviction was not as strong as that supporting the false official statement and larceny convictions, it was substantial, to include two witnesses who testified they saw appellant smoking a substance that he identified to them as spice; furthermore, despite the clumsy attempts by the trial counsel to elicit improper character evidence testimony related to drug use generally, the 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

Trial Stages: Appeals: Remedies › Generally

1. the presence of prosecutorial misconduct does not necessarily mandate dismissal of charges or a rehearing; 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
2. 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

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

1. where proper objection is entered at trial, an appellate court reviews alleged prosecutorial misconduct for prejudicial error
2. in determining whether prejudice resulted from prosecutorial misconduct, an appellate court will look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice inquiry requires the 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
3. 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