Articles Posted in Prosecutor problems

An accused in pretrial confinement awaiting trial receives day for day credit toward any sentence to confinement. In the old days, we referred to that as “Allen credit.”

Note, an accused may not automatically get credit for time spent in civilian jail–that needs to be litigated at trial. See United States v. Harris, __ M.J. ___, 2019 CAAF LEXIS 361 (C.A.A.F. 2019).

Which brings us to United States v. Howell, NMCCA, 2019. On appeal, Howell argued that the prosecution wrongly argued to nullify his pretrial confinement credit.

Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

At SimpleJustice blog (a blog worth following) there is a piece about Judge Kopf and a tweet which leads to a discussion of a prosecutors obligation to provide discovery to the defense.

Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.

LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.”  All this caused Capt X (the defense counsel) to audibly sob at counsel table, and she was unable to continue.

Unfortunately, it appears that the words and actions of the trial counsel (prosecutor) caused the defense counsel to make “several decisions about the appellant’s representation that were against her client’s interest, against the advice of the DHQE, and consistent with a concern for her and her husband’s situation.”

Sadly, today we report the decision in United States v. Hale, decided 31 May 2017, by the Navy-Marine Corps Court of Criminal Appeals.  Of seven assignments of error raised on appeal, the court reversed on this issue:  “III. That the appellant received ineffective assistance from his trial defense counsel, who were laboring under a conflict of interest[.]”

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)[ https://www.court-martial-ucmj.com/files/2016/03/USvGarcia.pdf].