Prosecutor error condoned, perhaps encouraged?

Spilman reports that:  CAAF decided the Navy case of United States v. Andrews, __ M.J. __, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA.  The report highlights a portion of the opinion:

Despite our finding of no prejudice, the prosecutorial conduct in this case raises concerns we feel compelled to address. We remind all military judges of their “sua sponte duty to insure [sic] that an accused receives a fair trial.” United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999) (internal quotation marks omitted) (citation omitted); see also 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.”). Military judges are neither “mere figurehead[s]” nor are they “umpire[s] in a contest between the Government and accused.” Watt, 50 M.J. at 105 (internal quotation marks omitted) (quoting United States v. Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974)). Nor can a defense counsel sit like a bump on a log—he or she owes a duty to the client to object to improper arguments early and often. See DeFreitas v. State, 701 So.2d 593, 602 (Fla. Dist. Ct. App. 1997) (explaining the court is unlikely to “excuse counsel for his failure” to object because a defense counsel “has the duty to remain alert to such things in fulfilling his responsibility to see that his client receives a fair trial”). Failure to do so may give rise to meritorious ineffective assistance of counsel claims. See F. Emmit Fitzpatrick & NiaLena Caravasos, Ineffective Assistance of Counsel, 4 Rich. J.L. & Pub. Int., 67, 81 (2000) (listing federal cases in which the circuit courts found ineffective assistance of counsel for failure to object (citing Williams v. Washington, 59 F.3d 673, 684 (7th Cir. 1995); Henry v. Scully, 78 F.3d 51, 52–53 (2d Cir. 1996); Bolander v. Iowa, 978 F.2d 1079, 1083–84 (8th Cir. 1992); Crotts v. Smith, 73 F.3d 861, 867 (9th Cir. 1996); Atkins v. Attorney General of Alabama, 932 F.2d 1430, 1432 (11th Cir. 1991); and Mason v. Scully, 16 F.3d 38, 45 (2d Cir. 1994))). Finally, we remind trial counsel they are:

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, [they are] 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…. It is as much [their] 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, 295 U.S. at 88. Every attorney in a court-martial has a duty to uphold the integrity of the military justice system.

IMHO, nothing here will change the ongoing practice of prosecutors during argument of using improper argument.  There have been a number of cases where the conviction was reversed on appeal, but, as the discussion above implies, those cases are far and few between.

Why do these cases continue to happen?

  • Lack of training.
  • Don’t care attitude.
  • I want/need to win attitude.
  • Prior actions are condoned if not encouraged by supervisors, leaders, and trainers.
  • People don’t read the cases and do the daily required diligence to be informed.
  • The pressure of politics.
  • It will be reversed on appeal so in the meantime he’s convicted and in jail so who cares.
  • I’ll be gone before it gets to an appeal.
  • No military leader is going to hold a prosecutor accountable when they are in a war against sex offenders and Congress is watching.

To paraphrase:

Finally, we remind trial counsel they are:

representative not of an ordinary party to a controversy, but of a sexual assault victim and whose obligation to govern impartially is not 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 a conviction shall be done. As such, [they are] in a peculiar and very definite sense the servant of the law and Congress, the twofold aim of which is that guilt shall not escape and the innocen[t shall] suffer [as well]…. It is as much [their] duty to use improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one–it is the conviction that counts.