U.S. v. Voorhees, 79 M.J. 5

Military Justice Personnel: Defense Function: Responsibilities

1. defense counsel owe a duty to their clients to object to improper arguments early and often
2. every attorney in a court-martial has a duty to uphold the integrity of the military justice system

Military Justice Personnel: Prosecution Function: Trial Counsel

1. 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, for example, 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
2. in this case, trial counsel’s personal attacks on defense counsel, personal attacks on appellant, and his expressing personal opinions, bolstering, and vouching constituted prosecutorial misconduct
3. trial counsel committed clear and obvious error when he accused defense counsel of misplaced lying, and made the defense theory of the case seem fantastical, saying defense counsel’s imagination was not reasonable doubt; the trial counsel may not label the defense counsel a liar or fabricator, nor may he engage in any argument amounting to prosecutorial misconduct, and it is improper for a trial counsel to attempt to win favor with the members by maligning defense counsel, including accusing the defense counsel of fabrication; when trial counsel maligned defense counsel, he risked both turning the trial into a popularity contest and influencing the members such that they may not have been able to objectively weigh the evidence against appellant; rather than deciding the case solely on the basis of the evidence presented, as is required, the members could have been convinced to decide the case based on which lawyer they liked better; indeed, the panel could have been so swayed by trial counsel’s disparaging remarks that it believed that the defense’s characterization of the evidence should not have been trusted, and, therefore, that a finding of not guilty would have been in conflict with the true facts of the case; trial counsel’s attacks on defense counsel were all the worse given that they were gratuitous and obviously intended to curry favor with the members; he drew comparisons between his style and that of defense counsel, framing defense counsel as an overly imaginative liar, while contrasting himself as a highly experienced, well-trained prosecutor; the trial counsel’s obvious attempts to win over the panel by putting himself in a favorable light while simultaneously making defense counsel look like a liar who would say anything to get his client off the hook were plainly improper; the trial counsel erroneously encouraged the members to decide the case based on the personal qualities of counsel rather than the facts; not only did his comments have the potential to mislead the members, but they also detracted from the dignity and solemn purpose of the court-martial proceedings
4. trial counsel committed clear error when he repeatedly attacked appellant’s character, calling him perverted, sick, and a narcissistic, chauvinistic, joke of an officer; at one point, trial counsel went so far as to describe appellant as, not an officer, not a gentleman, but a pig; later, trial counsel stressed this theme further, adding that the nature of appellant was the nature of his conduct, that is disgusting, deplorable, and degrading
5. disparaging comments by trial counsel were improper when they are directed to appellant himself; in this case, trial counsel’s word choice served as more of a personal attack on the accused than a commentary on the evidence; such conduct is inconsistent with the duty of the prosecutor to seek justice, not merely to convict; trial counsel had only to demonstrate that appellant violated the UCMJ and not that he was perverted, deplorable, disgusting, chauvinistic, narcissistic, or a pig; nor was it necessary for trial counsel to repeat these insults throughout his argument; in doing so, trial counsel risked unduly inflaming the passions of the panel
6. trial counsel committed clear and obvious error when he improperly expressed his personal opinion about appellant’s guilt, utilized personal pronouns, vouched for the credibility of the government witnesses, and bolstered his own credibility by stating that he had been trying cases for a long time and did not go TDY and leave his family 250 days a year to sell the panel a story
7. while a prosecutor may argue that the evidence establishes an accused’s guilt beyond a reasonable doubt, he is prohibited from expressing his personal opinion that the accused is guilty
8. the prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused posed two dangers: such comments could convey the impression that evidence not presented to the members, but known to the prosecutor, supported the charges against the accused and could thus jeopardize the accused’s right to be tried solely on the basis of the evidence presented to the members; and the prosecutor’s opinion carried with it the imprimatur of the government and may have induced the members to trust the government’s judgment rather than its own view of the evidence
9. in assessing prejudice with respect to prosecutorial misconduct, 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; under this test, appellant has the burden to prove that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different
10. in this case, although trial counsel’s misconduct amounted to grievous error, appellant failed to establish prejudice where appellant failed to demonstrate that trial counsel’s misconduct was so damaging as to call into question whether the members convicted appellant on the basis of the evidence alone; despite the severity of trial counsel’s misconduct and the absence of curative measures, several other factors militated against finding prejudice; first, defense counsel failed to object to any of the prosecutorial misconduct; second, the panel was comprised of senior officers who were uniquely situated to assess whether appellant’s conduct was unbecoming under Article 133, UCMJ, and trial counsel’s arguments were thus unlikely to impede these experienced officers’ ability to recognize conduct unbecoming and weigh the evidence against appellant; and third, the evidence that appellant violated Article 133, UCMJ, so clearly favored the government that appellant could not demonstrate prejudice
11. in every case, and especially a case alleging unbecoming conduct, trial counsel should take care to remember that they too are military officers and should conduct themselves accordingly; in this case, as he attempted to sway the members to convict appellant of conduct unbecoming pursuant to Article 133, UCMJ, trial counsel himself approached the line of indecorum; attacking one’s opposing counsel is as unacceptable as launching ad hominem attacks on the accused in open court; the token trait of a good prosecutor is the ability to be adversarial without being hostile, but here, unfortunately, trial counsel was openly hostile and petty, leaving propriety and good advocacy at the courtroom door

Military Justice Personnel: Military Judge: Duties and Responsibilities

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

Military Justice Personnel: Military Judge: Instructions

1. military judges are required to instruct members on the elements of each offense
2. in this case, where the military judge’s instructions on the offense of conduct unbecoming adequately explained the actus reus of appellant’s crimes (actions that could not, under the circumstances, have been innocent) and informed the members that they were to consider appellant’s conduct under the circumstances, this instructional language could reasonably be understood as requiring the panel members to determine whether appellant knew that he was engaging in certain conduct, and the military judge was under no requirement to offer any further instruction specific to general intent; as such, the instructions were not erroneous, let alone plainly erroneous

Core Criminal Law Subjects: Crimes: Generally Pre-2019 offenses

1. although it is true that wrongdoing must be conscious to be criminal, Congress is not required to include an explicit mens rea in every article of the UCMJ
2. when a statute is silent as to mens rea, an appellate court only reads into the statute that mens rea which is necessary to separate wrongful conduct from innocent conduct; a statute’s silence can be indicative of a general intent scienter
3. general intent merely requires the intent to perform the actus reus even though the actor does not desire the consequences that result

Core Criminal Law Subjects: Crimes: Article 133 - Conduct Unbecoming an Officer and Gentleman Pre-2019 offenses

1. Article 133, UCMJ, contains two elements: that the accused did or omitted to do certain acts; and that, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman; conduct unbecoming an officer and a gentleman means behavior in an official capacity which, in dishonoring or disgracing the individual as a commissioned officer, seriously detracts from his character as a gentleman, or behavior in an unofficial or private capacity which, in dishonoring or disgracing the individual personally, seriously detracts from his standing as a commissioned officer; unbecoming conduct means misbehavior more serious than slight, and of a material and pronounced character; it means conduct morally unfitting and unworthy rather than merely inappropriate or unsuitable misbehavior which is more than opposed to good taste or propriety
2. in this case, the Article 133, UCMJ, specifications did not omit words of criminality where the specifications used the terms “inappropriate” or “unprofessional” or alleged the conduct in each specification was unbecoming an officer and a gentleman; these allegations sufficiently contained words of criminality to state an offense
3. in this case, the government was only required to prove a general intent mens rea in order to convict the accused of conduct unbecoming an officer for making inappropriate sexual comments and actions directed toward subordinate airmen where no scenario existed where the accused’s conduct could be said to have engaged in innocent conduct
4. a general intent scienter for Article 133, UCMJ, may be inferred from Congress’s silence; this conclusion is based on the unique and long-recognized importance of an officer’s behavior in the United States armed forces, and the deeply corrosive effect that indecorous behavior can have on the military’s paramount mission to defend the nation
5. the gravamen of Article 133, UCMJ, is that the officer’s conduct disgraces him personally or brings dishonor to the military profession such as to affect his fitness to command so as to successfully complete the military mission
6. because officer behavior is so important, criminal liability for conduct unbecoming does not depend on whether conduct actually effects a harm upon a victim, but rather on whether the officer possessed the general intent to act indecorously, dishonestly, or indecently
7. conscious conduct that is unbecoming an officer is in no sense lawful; this behavior undermines the integrity of the military’s command structure, and the hazardous aspect of license in this area is that the damage done may not be recognized until the battle has begun; general intent sufficiently separates lawful and unlawful behavior in this context, and there is no basis to intuit a mens rea beyond that which is traditionally required for Article 133, UCMJ

Trial Stages: Merits: Instructions › Generally

1. military judges are required to instruct members on the elements of each offense
2. in this case, where the military judge’s instructions on the offense of conduct unbecoming adequately explained the actus reus of appellant’s crimes (actions that could not, under the circumstances, have been innocent) and informed the members that they were to consider appellant’s conduct under the circumstances, this instructional language could reasonably be understood as requiring the panel members to determine whether appellant knew that he was engaging in certain conduct, and the military judge was under no requirement to offer any further instruction specific to general intent; as such, the instructions were not erroneous, let alone plainly erroneous

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in assessing prejudice with respect to prosecutorial misconduct, 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; under this test, appellant has the burden to prove that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different
2. in this case, although trial counsel’s misconduct amounted to grievous error, appellant failed to establish prejudice where appellant failed to demonstrate that trial counsel’s misconduct was so damaging as to call into question whether the members convicted appellant on the basis of the evidence alone; despite the severity of trial counsel’s misconduct and the absence of curative measures, several other factors militated against finding prejudice; first, defense counsel failed to object to any of the prosecutorial misconduct; second, the panel was comprised of senior officers who were uniquely situated to assess whether appellant’s conduct was unbecoming under Article 133, UCMJ, and trial counsel’s arguments were thus unlikely to impede these experienced officers’ ability to recognize conduct unbecoming and weigh the evidence against appellant; and third, the evidence that appellant violated Article 133, UCMJ, so clearly favored the government that appellant could not demonstrate prejudice

Trial Stages: Appeals: Preservation of Error / Plain Error

1. an appellate court reviews prosecutorial misconduct and improper argument de novo, and where no objection is made, it reviews for plain error
2. the burden of proof under plain error review is on the appellant; plain error occurs when (1) there is error, (2) the error is clear or obvious, and (3) the error results in material prejudice to a substantial right of the accused
3. in reviewing whether argument that was not objected to is improper, an appellate court must determine: (1) whether trial counsel’s arguments amounted to clear, obvious error; and (2) if so, whether there was a reasonable probability that, but for the error, the outcome of the proceeding would have been different
4. where an appellant did not object to a military judge’s failure to instruct the members on a mens rea requirement, an appellate court reviews the issue for plain error

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

1. an appellate court reviews prosecutorial misconduct and improper argument de novo, and where no objection is made, it reviews for plain error
2. the burden of proof under plain error review is on the appellant; plain error occurs when (1) there is error, (2) the error is clear or obvious, and (3) the error results in material prejudice to a substantial right of the accused
3. in reviewing whether argument that was not objected to is improper, an appellate court must determine: (1) whether trial counsel’s arguments amounted to clear, obvious error; and (2) if so, whether there was a reasonable probability that, but for the error, the outcome of the proceeding would have been different
4. in assessing prejudice with respect to prosecutorial misconduct, 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; under this test, appellant has the burden to prove that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different
5. questions pertaining to the substance of a military judge’s instructions, as well as those involving statutory interpretation, are reviewed by an appellate court de novo
6. where an appellant does not object to a military judge’s failure to instruct the members on a mens rea requirement, an appellate court reviews the issue for plain error
7. when a statute is silent as to mens rea, an appellate court only reads into the statute that mens rea which is necessary to separate wrongful conduct from innocent conduct; a statute’s silence can be indicative of a general intent scienter

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

1. when a statute is silent as to mens rea, an appellate court only reads into the statute that mens rea which is necessary to separate wrongful conduct from innocent conduct; a statute’s silence can be indicative of a general intent scienter