The Court of Appeals for the Armed Forces (the top military court) has slammed another Army trial prosecutor for egregious misconduct in an Army court-martial.
This is the second case in as many years that this court has castigated an Army prosecutor for misconduct. In 2015, the court found serious problems with the way another Army prosecutor dealt with discovery obligations in a child molestation case.
This year’s opinion—breaking with the custom and decorum of appeals courts across the country—identifies the prosecutor by name, rank, and position, a particularly embarrassing and rare occurrence in the legal profession. Taken together, these two cases are further proof of the need for career litigation tracks for military attorneys.
Congressional Efforts at Reform
Last year, for the first time ever, the House of Representatives considered and passed an amendment to the National Defense Authorization Act requiring the services to establish career litigation tracks for members of the Judge Advocate General’s (JAG) Corps.
Reps. Ron DeSantis, R-Fla., (a Navy JAG reservist) and Ryan Zinke, R-Mont., (a retired Navy SEAL) offered an amendment to the bill requiring career military justice litigation tracks for all branches of the JAG Corps.
The primary purpose of the amendment was to improve the delivery of justice to victims and defendants alike in the military justice system by forcing the development of career, experienced litigators—just like in the civilian world of district attorneys and public defenders.
The Navy had established a career litigation track years ago, so the amendment, which passed the House as written, would have had the greatest effect on the Army and Air Force JAG Corps, both of which object to and have refused to adopt career litigation tracks.
At the same time, the amendment was proposed in the Senate by Sen. Joni Ernst, R-Iowa. A retired lieutenant colonel in the Army National Guard, Ernst pushed for the career litigation track as a means to improve the caliber of prosecutors and defense counsel across the services.
As we reported here, staffers for the Senate Armed Services Committee—who happened to be retired JAGs themselves—gutted the amendment at the behest of the Army and Air Force, turning the track into an ineffectual “pilot program.”
Under the Senate-passed version, the program required the services to study the “feasibility and advisability of a military justice career track for judge advocates.” When the House and Senate bills went to conference to reconcile the differences between the competing versions of the bill, the conference committee further watered down the “pilot program.”
What emerged was a requirement for the services to conduct a five-year “pilot” program to “ensure that trial counsel and defense counsel … have sufficient experience and knowledge” and to issue a report at the end of those five years on their “findings.”
As I have written before, given the strong resistance to Ernst’s proposal by the Army, Air Force, and former non-litigator JAGs who now staff the Committee on Armed Services, it is very likely that their “report” will say they don’t need a career track.
But case after case coming through the military justice system strongly suggests otherwise.
The Latest Case: Sewell
On Feb. 1, 2017, the Court of Appeals for the Armed Forces ruled on the question of “whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings” in United States v. Sewell.
A previous decision—United States v. Hornback—held, quoting from the Supreme Court case of Berger v. United States, that “[p]rosecutorial misconduct occurs when trial counsel ‘overstep[s] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”
The court said reversal is warranted only “when the trial counsel’s comments, taken as a whole, were so damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.”
While the majority in Sewell found that the evidence supporting Sgt. Todd Sewell’s conviction was stronger than the evidence supporting his acquittal, it fully acknowledged that “[s]ome of trial counsel’s statements during argument were improper.”
Thus, the majority did not deny that the trial counsel, whom it identified in its opinion as Lt. Col. Matthew McDonald, acted improperly.
And what did the Army prosecutor do? According to Judge Kevin Ohlson, who concurred in part and dissented in part, McDonald committed four kinds of prosecutorial misconduct.
First, he used “personal pronouns throughout the findings argument.” Second, he made “propensity arguments [that were not] fair inferences derived from the trial evidence.” Third, he engaged in “ad hominem attacks” against the defendant. And finally, he “made inflammatory statements that were predicated on facts not in evidence.”
Law students who take trial advocacy are taught not to engage in this kind of blatant misconduct. Lawyers in the JAG Corps are members of at least one state bar, and are bound by their state bar’s ethics rules, JAG ethics rules, and the American Bar Association’s Standards for Criminal Justice Prosecution Function. Properly trained JAGs certainly should know better.
Ohlson notes in a footnote that McDonald was a senior officer who was “designated as a special victim’s prosecutor,” and that he previously served as a military trial judge. The scathing footnote intones, “Presumably, a person of that rank and that position would have received significant training and courtroom experience before prosecuting a case such as this one.”
These are actions that career civilian prosecutors learn to eschew early in their career in order to avoid jeopardizing a case.
For a trial counsel this “experienced” to make such improper statements indicates that the lack of a career litigation track is again failing the Army, the Air Force, military prosecutors and defense lawyers, and victims and defendants in the military justice system.
The 2015 Case: Stellato
Sewell is only the latest in a string of disturbing high-profile cases that deal with the issue of prosecutorial misconduct.
In 2015, the Court of Appeals for the Armed Forces issued a forceful decision in United States v. Stellato, in which it found serious problems with the way trial counsel handled basic discovery obligations in a child molestation case. The defendant was an Army major who was accused of molesting his 2-year-old daughter from 2007 through 2009.
The military judge at trial found “continual and egregious discovery violations” by the trial counsel, that he was “recklessly cavalier” about his discovery violations, and that his actions constituted “an almost complete abdication of discovery duties,” and dismissed the case.
The government appealed and won at the Army Court of Criminal Appeals, but the Court of Appeals for the Armed Forces overturned this decision and ruled unanimously against the trial counsel and government with respect to four of the five discovery violations.
And what did this Army prosecutor—also named by the court as Capt. K. Daniel Jones—do that caused the case to be dismissed?
When visiting the wife of the accused (and mother of the victim), Jones learned that the wife had kept a box of evidence related to the case, including notes written by the mother about things the victim told her, journals about the allegations, correspondence between the wife and defendant about the allegations, and a note on which the wife recorded a recantation by the victim.
Inexplicably, Jones never even examined the contents of the box, which clearly contained both inculpatory and potentially exculpatory evidence.
To make matters even worse, after charges were preferred against the defendant, the prosecutor never disclosed to the defense that the box even existed. And if that was not bad enough, Jones consulted with the former top prosecutor at his command about how best to respond to the defense discovery request, and decided, based on that discussion, not to respond to the defense until closer to trial.
The prosecutor’s discovery violations continued for some time, as chronicled in the case itself.
The case shed a very public light on the pervasive failure on the part of the trial counsel, and by extension the military and government as a whole, to properly handle important evidence and follow discovery procedures.
Both cases involved supposedly experienced Army prosecutors, one of whom was a special victims counsel and former military trial judge. Both cases involved serious felonies. And in both cases, the prosecutors engaged in gross misconduct that every single misdemeanor civilian career prosecutor in America knows is forbidden, unethical, and outrageous behavior.
One would think that, given the widely publicized decisions in Sewell and Stellato that demonstrate such institutional inexperience and gross incompetence, the Army, Air Force, and their former JAGs on the Senate Armed Services Committee would admit that the civilian practice of developing career litigation specialization has merit, and be willing to consider bringing their JAG programs in line with the best practices embodied by their civilian counterparts in district attorney and public defender offices across the country.
After all, they should have a vested interest in creating a highly professional and fair system that is just for victims and defendants and generates confidence in the military justice system. However, their lack of action and the persistence of such poorly handled cases are further proof that the current system is not producing experienced career litigators, and won’t, unless Congress mandates it.
As Army JAG Maj. Jeffrey A. Gilberg writes in a 2014 article in the Military Law Review:
… the Army’s military justice system continues to suffer from a lack of litigation experience. Army prosecutors and defense counsel are routinely sent into court with little meaningful experience and without the benefit of a seasoned practitioner to guide them through the process.
Reform Is Sorely Needed
The failure of the Army and Air Force to develop real career litigation tracks that produce experienced JAGs is unacceptable for a military justice system that employs so many talented and intelligent young men and women in the service of their country.
If the Army and Air Force are unwilling to do so—and they seem happy with their fig leaf “pilot program”—the Senate should follow the House of Representatives in requiring the services to establish effective career litigation tracks for their JAGs that respect the unique structure and mission of each service.
The professionalism, integrity, and fairness of the military justice system depend on it.