U.S. v. Pabelona, 76 M.J. 9

Military Justice Personnel: Prosecution Function: Misconduct

1. prosecutorial misconduct is action or inaction by a prosecutor in violation of some legal norm or standard, such as a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon; 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; the trial counsel may prosecute with earnestness and vigor, but, while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his 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
2. prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone
3. where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone

Trial Stages: Merits: Argument

1. prosecutorial misconduct is action or inaction by a prosecutor in violation of some legal norm or standard, such as a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon; 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; the trial counsel may prosecute with earnestness and vigor, but, while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his 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
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
3. in this case, even if certain of trial counsel’s comments in closing argument on the merits and in argument as to the sentence were improper, there was no evidence that the trial counsel’s arguments resulted in material prejudice to any of appellant’s substantial rights, where (1) the weight of the evidence supporting the conviction was strong enough to establish lack of prejudice in and of itself, (2) appellant was convicted on only two out of four charges, indicating the members were able to weigh the evidence offered at trial and make an independent assessment of appellant’s guilt or innocence with regard to each separate specification, and (3) his sentence was significantly less than that requested by the government

Trial Stages: Sentence and Punishment: Argument

1. prosecutorial misconduct is action or inaction by a prosecutor in violation of some legal norm or standard, such as a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon; 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; the trial counsel may prosecute with earnestness and vigor, but, while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his 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
2. where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone
3. in this case, even if certain of trial counsel’s comments in closing argument on the merits and in argument as to the sentence were improper, there was no evidence that the trial counsel’s arguments resulted in material prejudice to any of appellant’s substantial rights, where (1) the weight of the evidence supporting the conviction was strong enough to establish lack of prejudice in and of itself, (2) appellant was convicted on only two out of four charges, indicating the members were able to weigh the evidence offered at trial and make an independent assessment of appellant’s guilt or innocence with regard to each separate specification, and (3) his sentence was significantly less than that requested by the government

Trial Stages: Appeals: Harmless / Prejudicial Error

1. even were an appellate court to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct actually impacted on a substantial right of an accused, that is, resulted in prejudice
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
3. where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone
4. in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at 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; no determination has been made regarding how much weight to give each factor; however, if the third factor overwhelmingly favors the government, that may be sufficient to establish lack of prejudice
5. in this case, even if certain of trial counsel’s comments in closing argument on the merits and in argument as to the sentence were improper, there was no evidence that the trial counsel’s arguments resulted in material prejudice to any of appellant’s substantial rights, where (1) the weight of the evidence supporting the conviction was strong enough to establish lack of prejudice in and of itself, (2) appellant was convicted on only two out of four charges, indicating the members were able to weigh the evidence offered at trial and make an independent assessment of appellant’s guilt or innocence with regard to each separate specification, and (3) his sentence was significantly less than that requested by the government

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where a defense counsel fails to object to the arguments of trial counsel at the time of trial, an appellate court reviews for any error for plain error; and the standard for plain error review requires that: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights; the burden lies with appellant to establish plain error

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

1. improper argument involves a question of law that this Court reviews de novo; the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused
2. where a defense counsel fails to object to the arguments of trial counsel at the time of trial, an appellate court reviews for any error for plain error; and the standard for plain error review requires that: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights; the burden lies with appellant to establish plain error
3. even were an appellate court to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct actually impacted on a substantial right of an accused, that is, resulted in prejudice
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. where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone
6. in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at 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; no determination has been made regarding how much weight to give each factor; however, if the third factor overwhelmingly favors the government, that may be sufficient to establish lack of prejudice