Articles Posted in Prosecutor problems

The Army Court of Criminal Appeals will hear oral argument on Wednesday, August 3, 2016, at 10 a.m., in United States v. Ahern, No. 20130822.  The court will consider the arguments of counsel on the following two issues.

I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.”

II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

As people know, I follow closely issues of improper prosecution argument.  Trial counsel’s arguments present an opportunity for significant error and perhaps a new trial.  Well, this snapped my head when first read.

Appellant, a married African-American adult of 27 years, raises a complaint under Grostefon which merits discussion. He asserts government counsel referred to him in a racially offensive manner by calling him “boy” twice. Specifically, appellant characterizes as racial epithets government counsel’s remark in closing, “This old boy was ‘Courtin’ n Sparkin’.’” (quotations in original), and subsequent argument in rebuttal, “And they keep harping on the fact that he’s not a big-ole boy.”

We have carefully considered the context surrounding counsel’s use of the word, “boy,” noting our nation’s highest court’s view thereof: “Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” In this case, appellant was elsewhere described as acting as if he had an immature crush on SPC PK, and we are confident in concluding that this—rather than “racial animus”—was the backdrop for the comments.

The Guardian reports, Detective criticised for ‘getting too close’ in alleged rape case, 9 May 2016.

A senior judge has criticised a police detective and the Crown Prosecution Service for their handling of an accusation of gang rape after the case against four young men collapsed just as their trial was due to begin.

Judge Jamie Tabor QC said DC Ben Lewis of Gloucestershire police had got too close to the complainant and did not understand his job properly.

In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order.  The Attorney General of the United States issues several manuals for U. S. Attorneys.  This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation.  It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

Courtesy of Prof. Colin Miller and his excellent evidence blog, here are some thoughts for the day on prosecutor error.

Keep this in mind when the prosecution want’s to admit documents or reports.

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

Can the actions of military prosecutors raise the specter of Unlawful Command Influence?

Maybe.

That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals.  (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August 18, 2015)[ http://www.court-martial-ucmj.com/usvgarcia/].

We often hear of prosecution misconduct going unchallenged or undisciplined.  Two events this week are noteworthy though in efforts to hold prosecutors accountable.

Armstrong v. Daily, et. al., is a case out of the Seventh.  The M-W Journal Sentinal extracts this:

He brought a civil rights suit against the prosecutor on his case, John Norsetter, and two crime lab workers, Karen Daily and Dan Campbell. All three sought to have Armstrong’s suit dismissed on immunity grounds, but the 7th Circuit U.S. Court of Appeals affirmed the trial judge’s refusal to grant that request:

Remember Napue v. Illinois, 360 U.S. 264 (1959)?  Here’s the Justia summary.

At petitioner’s trial in a state court in which he was convicted of murder, the principal state witness, an accomplice then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State’s Attorney that he had received no promise of consideration in return for his testimony. The Assistant State’s Attorney had in fact promised him consideration, but he did nothing to correct the witness’ false testimony. The jury was apprised, however, that a public defender had promised “to do what he could” for the witness.

The failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment. Pp. 360 U. S. 265-272.

The military SVC programs have been ongoing for a little while.  So some signs of the good and bad are starting to show.  It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations.  One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case.  But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting.  The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount.  The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice.  That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations.  The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Some prosecutors get carried away with their mission and over over-egg their argument.  In a winnable case it shouldn’t be necessary.  If you’ve got a bad case, but get a conviction it may lead to reversal.  Here’s another example.

A Connecticut appeals court decided to send a message to a prosecutor accused of appealing to jurors’ emotions when it reversed the conviction of a man accused of killing a bar owner in 1998 and ordered a new trial.

The appeals court opinion (PDF) said Assistant State’s Attorney Terence Mariani Jr. of Waterbury made improper arguments in the trial of Victor Santiago, as well as in previous cases, the Associated Press and the Connecticut Law Tribune report. “We believe that nothing short of reversal will have the effect of deterring him,” the court said.