Over the last several years, I have noticed quite a few cases on appeal challenging improper arguments made by the prosecutor. Here is a short burst on a recent approach I have taken.
Standard of review
Prosecutorial error in making an improper argument is a legal question reviewed de novo. If there is no object to the errors, this Court applies a ‘plain error” standard of review. An appellant must show “(1) there is an error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused.” United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017); United States v. Erikson, 65 M.J. 221 (CA.A.F. 2007); United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005).
The prosecution case was not strong because the evidence does not show BM1 was incapable of consenting to sexual activity. Therefore, the prosecutorial errors in the argument will certainly have affected the judgment of the members to the client’s prejudice.
Trial counsel—the ninth member. The following are examples of trial counsel inserting himself as a “member;” as well as vouching for the credibility of the government evidence as well. For example,
- “How do we know,” and later, “again, we know[.]” Id. Later, “We know she was incapable of consent.” (R. 976.) “We know that Client knew this,” and later “we know that first block is checked.” Id.
- We know that X didn’t consent.” (R. at 977.)
- “We know that X was compromised.” (R. at 980.)
These were strong statements on critical elements of the offenses charged, not about minutiae. A prosecutor vouches for the evidence when using the “we” or “I” pronoun. Vouching for a witness or testimony puts the prestige of the prosecutor and the government online asserting that they believe the allegations are true and the prosecutor and government can be trusted to know that—why else would there be a prosecution. See, e.g., United States v. Perez-Ruiz, 353 F.3d 1, 12 (1st Cir. 2003).
Trial counsel—the ninth (prosecution) witness, bolsterer, and giver of the government’s imprimatur.
- “We’ve all experienced the late-night where you get tired.” The prosecutor is testifying. (R. at 996.)
- “When I view that, I-I view bloodshot eyes still. I viewed squinting.” The prosecutor is putting his imprimatur on his view of the evidence. (R. at 997.)
- “She wasn’t blacked out on the trip, she wasn’t, I believe, as X put it, smoking and joking, walking, talking with people.” The prosecutor is telling the members to adopt his belief about the evidence. (R. at 998.)
[Client] didn’t testify or rebut the government case, trial counsel told the members.
- “And we have only heard this was a consensual encounter from the accused through his conversations with other people after the fact [and outside the courtroom]. Of course, he’s – biased and-and can be seen trying to frame a narrative this way. No evidence supports this.”
(R. at 999.) This is a clear argument to convict the Client because he didn’t testify and that he didn’t produce supporting evidence of his out-of-court statements during trial. Word count or how many times repeated is irrelevant—it is the qualitative impact of each instance of improper argument that matters. If the improper argument highlights a significant point or an element, then qualitatively it is more likely to be prejudicial.
In United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 1990), we observed that “it is black letter law that a trial counsel may not comment directly, indirectly, or by innuendo, on the fact that an accused did not testify in his defense.” As noted in the Discussion accompanying Rule for Court-Martial (R.C.M.) 919(b): “Trial counsel may not comment on the accused’s exercise of the right against self-incrimination[.] Trial counsel may not argue that the prosecution’s evidence is unrebutted if the only rebuttal could come from the accused.” Although not binding, the Discussion reflects applicable judicial precedent. See MCM, Analysis of R.C.M., app. 21 at A21-66.
United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). “It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88 (1935).
In every case involving improper argument of counsel, we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’.
Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962). See also, Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 Va L.Rev. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 Emory L. J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”)
The prosecutors compounded their errors during argument on a sentence.
- “I would argue that things like restriction, reprimand, wholly inappropriate for this type of serious offense.” (R. at 1140.)
- “[M]y recommended sentence is a dishonorable discharge as required, confinement for four years, reduction to E1. That’s actually the formulation that I came up with, uh, prior to hearing X’s unsworn statement. I had assumed that he would come in here and accept responsibility, perhaps make an apology to X, and instead, we heard something completely different, and in my opinion whole-wholly shocking.” (R. at 1140.)
- “We need to address that. We need to recognize the seriousness of not just the offense but how it was committed.” (R. at 1141.) Not only is this an improper argument, but the prosecutor also argued that X should be punished for exercising his right to a trial and his right to remain silent. The prosecutor knew that X would have the right of appeal in this case and that any statements admitting guilt would be used against him in this court and in the event of a retrial.
- “I think his, the sentence I’ve proposed reflects that,” (R. at 1142.)
- “There are X men, and women getting ready to go out on the town. We need to send a message. We recognize this is a problem that will continue to happen. It is a problem that we can do something about.” (R. at 1145.)
The prosecutor argued facts not in evidence.
- “sentence [X] to rehabilitate the offender. The military penal system is not a warehouse where we just put people. The goal. One of the goals of the appropriate punishment is for a person to come out of the brig, a better person than when they went in. And so there was programming available to them in there to better themselves.” (R. at 1141.)
There is no evidence in the record to support the prosecutor’s assertion. “This line of argument by trial counsel created a condition, suffered by some litigators, most commonly referred to as reciting “facts not in evidence” and it was improper on those grounds.” United States v. St. Jean, No. ARMY 20190663, 2022 CCA LEXIS 26, at *12 (A. Ct. Crim. App. Jan. 13, 2022) (memorandum op.) (citing Fletcher, 62 M.J. at 183).
This Court balances three factors to assess prejudice: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005).
The cumulative effect of the constellation of errors was to deny GM2 Armitage a fair trial. The errors go to the central issues in the case, the defense failed to object, and the military judge took no affirmative action to stop or attempt to cure the errors as they happened. Cf. United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999); United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 1977) (“At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument.”); United States v. Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974). See also, United States v. Banks, 36 M.J. 150 (C.M.A. 1992); United States v. Walters, 4 U.S.C.M.A. 617, 16 C.M.R. 191 (1954).
X was prejudiced during the merits portion of his trial.
WHEREFORE, this court should set aside the findings and sentence because to paraphrase the prosecutor, “part of the process here is to spread the message that” improper arguments of prosecutors is “not to be tolerated and will be appropriately held accountable.” (R. at 1142.)