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Policing prosecutors

Once again it seems to be the duty of the defense counsel to police the prosecutors not for the prosecutors to police themselves. That is one of my conclusions from the new decision—United States v. Voorhees, just decided by the U. S. Court of Appeals for the Armed Forces (CAAF).

In Voorhees, Captain JT, trial counsel (prosecutor), tried to establish his bona fides with the court members during voir dire. Which lead the CAAF to say:

Despite his self-described expertise, trial counsel’s findings and rebuttal arguments were riddled with egregious misconduct, much of which amounted to clear, obvious error. We are most concerned with trial counsel’s: (1) personal attacks on defense counsel; (2) personal attacks on Appellant; and (3) expressing personal opinions, bolstering, and vouching. We address each in turn (which the Court did).

First, trial counsel accused defense counsel of “misplaced lying,” and made the defense theory of the case seem fantastical, saying “defense counsel’s imagination is not reasonable doubt.” Both statements amount to clear, obvious error.

A reasonable observer must ask, why did the prosecutor not know that and refrain from such conduct. (Note that it’s unusual for the appellate courts to name the trial counsel.) Later the Court quotes some of the language used during argument concluding, again, that “These statements are all clear and obvious error.”

Some years ago I had a TC tell the members I was being "deceptive." I did not object. What I did was to address that, forcefully, at the beginning of my argument. Sadly, on rebuttal, the TC did it again at which point I did object (one of the the very few times I've done a speaking objection because I was not getting another chance to argue to the members [know the "invited error" doctrine]). In the end we got the client a new trial, for a different reason, and when we went back to trial an acquittal.

Back to Voorhees. The CAAF said, “Although trial counsel’s misconduct amounted to grievous error,” they were not prejudicial because the evidence against the accused was overwhelming, the defense counsel didn’t object, and the trial judge did not sua sponte object and caution the trial counsel. So, the conviction was affirmed. The CAAF observed that,

Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel.

. . .

Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial. As we admonished in Andrews, “Military judges are neither mere figurehead[s] nor are they umpire[s] in a contest between the Government and accused;” they too have a “sua sponte duty to [e]nsure that an accused receives a fair trial.” 77 M.J. at 403–04 (alterations in original) (internal quotation marks omitted) (citations omitted). The military judge in Appellant’s case simply allowed trial counsel to ramble on with his improper argument. Similarly, although defense counsel’s failure to object appears to have been a conscious and tactical choice in the instant case, we remind all defense counsel they “owe[s] a duty to the[ir] client[s] to object to improper arguments early and often.” Id. at 404.

. . .

This case aside, the consistent flow of improper argument appeals to our Court suggests that those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct. As superior officers, these individuals should remind their subordinate judge advocates of the importance of the prosecutor’s role within the military justice system and should counsel them to “seek justice, not merely to convict.”

. . .

Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel.

On first appeal to AFCCA that court set aside a finding of guilty to sexual assault, leaving an Article 133 conviction in place. The court remanded for a new sentencing hearing, after which the case went back to AFCCA and then to CAAF.


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