The Army Court of Criminal Appeals issued a Memorandum Opinion on 9 December 2011, in the case of United States v. Perterson. The opinion is worth reading for its discussion of prosecution over-reaching in aggravation witnesses, cross-examination of defense witnesses, and argument. The defense did not object to the prosecution argument, but as the opinion notes, dealt with the argument in their own argument. The court finds error with the trial counsel’s argument and the military judge’s response. Here is the AOE (which was evaluated using a plain error analysis):
WHETHER IT WAS PLAIN ERROR WHEN TRIAL COUNSEL INFLAMED THE PASSIONS OF THE PANEL BY IMPLYING THAT CHILDREN ON ARMY INSTALLATIONS EVERYWHERE ARE IN DANGER OF BEING SEXUALLY ABUSED BY APPELLANT AND ARGUING THAT APPELLANT SHOULD BE PUNISHED FOR ACTUALLY HARMING CHILDREN.
In discussing the prosecutors role the court begins:
The Requirement that Prosecutorial Zeal be Tempered by Discipline
Justice Sutherland’s seventy-five year old admonition about the role of the government prosecutor is worth revisiting:
[He] is the 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, he is 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. He may prosecute with earnestness and vigor—indeed he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his 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.
Berger v. United States, 295 U.S. 78, 88 (1935). Appellate courts trot out portions of this hoary adage with some frequency because prosecutors, in their zeal to win, sometimes lose sight of the discipline involved in serving the law and not just the executive. In a system of military justice premised upon the maintenance of good order and discipline, it is especially important that trial counsel understand and internalize the disciplined obligations of their dual roles. There is no acceptable basis to go outside the record and engage in inflammatory rhetoric; a simple plea to the panel to look at the evidence would have sufficed.
Ultimately the court found it could Sales the sentence and affirmed a BCD vice the adjudged DD. The court found that a 12 month PTA confinement cap helped absorb some of the sting as to the confinement portion of the sentence.
On another note there was no objection to the one prosecution witness in aggravation (although appropriate objections were made to parts of the testimony). A motion in-limine might have been a good idea.
The government called but one witness in aggravation – appellant’s current company commander – who was insufficiently familiar with appellant to give a qualified opinion on appellant’s rehabilitative potential.
As to the objections on cross-examination of defense character witnesses:
Trial counsel first dipped her pen in the poisonous well when cross-examining two of appellant’s character witnesses on whether they thought appellant’s misconduct was “dishonorable.” Appellant’s contemporaneous objections initially were overruled but after trial counsel started in with a third witness, the military judge reversed himself, sustained the objection, and instructed the panel:
And because one of the potential punishments in this case
is a dishonorable discharge, I am going to specifically
instruct you to disregard the testimony of the last two
witnesses on cross-examination indicating that the
accused’s conduct was dishonorable. I do not want you to
interpret that opinion as an indication that those witnesses
believe that the accused should receive a dishonorable
discharge, because again, no witness can testify that they
believe an accused should receive a punitive discharge.
The decision is solely for you to make. So to avoid any
issues, I am going to tell you to disregard those witnesses
testimony that the accused’s conduct was dishonorable.