U.S. v. Andrews, 77 M.J. 393

Military Justice Personnel: Defense Function: Generally

1. a defense counsel cannot sit like a bump on a log; he or she owes a duty to the client to object to improper arguments early and often; failure to do so may give rise to meritorious ineffective assistance of counsel claims

Military Justice Personnel: Defense Function: Responsibilities

1. a defense counsel cannot sit like a bump on a log; he or she owes a duty to the client to object to improper arguments early and often; failure to do so may give rise to meritorious ineffective assistance of counsel claims
2. every attorney in a court-martial has a duty to uphold the integrity of the military justice system

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. a defense counsel cannot sit like a bump on a log; he or she owes a duty to the client to object to improper arguments early and often; failure to do so may give rise to meritorious ineffective assistance of counsel claims

Military Justice Personnel: Prosecution Function: Trial Counsel

1. trial counsel are representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done; as such, they are in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer; it is as much their 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. every attorney in a court-martial has a duty to uphold the integrity of the military justice system

Military Justice Personnel: Prosecution Function: Misconduct

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; 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; prosecutors have a duty to refrain from improper methods calculated to produce a wrongful conviction; 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. 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; it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; the third factor alone may so clearly favor the government that the appellant cannot demonstrate prejudice
3. in this case, trial counsel’s misconduct was severe because: (1) it occurred with alarming frequency; (2) it persisted throughout the entirety of trial counsel’s closing argument, including through the rebuttal; (3) the entire trial was five days long and the trial on the merits lasted for only three days; (4) the panel deliberated for less than three hours before convicting appellant; and (5) the military judge issued just one ruling for trial counsel to abide by and trial counsel failed to do so

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. military judges have a sua sponte duty to ensure that an accused receives a fair trial; they are neither mere figureheads nor are they umpires in a contest between the government and the accused
2. every attorney in a court-martial has a duty to uphold the integrity of the military justice system

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Proof, persuasion

1. the burden of proof under plain error review is on the appellant

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court reviews prosecutorial misconduct and improper argument de novo; if proper objection is made, an appellate court reviews for prejudicial error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellate court reviews prosecutorial misconduct and improper argument de novo; if no objection is made, the appellant has forfeited his right to appeal and an appellate court reviews for plain error; the burden of proof under plain error review is on the appellant
2. notwithstanding the RCM 919(c) language that the failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection, an appellate court reviews unobjected to prosecutorial misconduct and improper argument for plain error
3. 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. 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; it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; the third factor alone may so clearly favor the government that the appellant cannot demonstrate prejudice
5. in this case, where the prosecutorial misconduct case was severe and amounted to plain and obvious error, the weight of the evidence supporting the conviction so clearly favored the government such that appellant could not establish prejudice where there were multiple corroborating witnesses and his own admissions

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

1. an appellate court reviews prosecutorial misconduct and improper argument de novo; if proper objection is made, an appellate court reviews for prejudicial error; if no objection is made, the appellant has forfeited his right to appeal and an appellate court reviews for plain error; the burden of proof under plain error review is on the appellant
2. deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal
3. notwithstanding the RCM 919(c) language that the failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection, an appellate court reviews unobjected to prosecutorial misconduct and improper argument for plain error, upholding US v. Fletcher, 62 MJ 175 (CAAF 2005)

Trial Stages: Appeals: Waiver

1. deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal
2. notwithstanding the RCM 919(c) language that the failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection, an appellate court reviews unobjected to prosecutorial misconduct and improper argument for plain error, upholding US v. Fletcher, 62 MJ 175 (CAAF 2005)

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. courts must give effect to the clear meaning of statutes as written and questions of statutory interpretation should begin and end with statutory text, giving each word its ordinary, contemporary, and common meaning; thus, as a first step in statutory construction, courts are obligated to engage in a plain language analysis of the relevant statute, and to apply the common and ordinary understanding of the words in the statute; these principles also apply to interpreting the rules and other provisions in the MCM

Miscellaneous Matters: Judicial Review: Stare Decisis

1. stare decisis is defined as the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation; the doctrine encompasses at least two distinct concepts: (1) an appellate court must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself; and (2) courts must strictly follow the decisions handed down by higher courts; adherence to precedent is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process; an appellate court will not overturn precedent that has been treated as authoritative for a long time unless the most cogent reasons and inescapable logic require it; stare decisis is most compelling where courts undertake statutory construction; the party requesting that a court overturn precedent bears a substantial burden of persuasion
2. applying stare decisis is, however, not an inexorable command; an appellate court is not bound by precedent where there has been a significant change in circumstances after the adoption of a legal rule, or an error in legal analysis, and it is willing to depart from precedent when it is necessary to vindicate plain, obvious principles of law and remedy continued injustice
3. an appellate court considers the following factors in evaluating the application of stare decisis: whether the prior decision is unworkable or poorly reasoned; any intervening events; the reasonable expectations of servicemembers; and the risk of undermining public confidence in the law; even if these factors weigh in favor of overturning long-settled precedent, an appellate court still requires special justification, not just an argument that the precedent was wrongly decided
4. under the doctrine of stare decisis, the question is not whether the interpretation at issue is plausible; it is whether the decision is so unworkable or poorly reasoned that it should be overruled
5. when a court is clearly convinced that precedent is no longer sound because of changing conditions and that more good than harm will come by departing from precedent, that court is not inexorably bound by its own precedents