Court of Appeals for the Armed Forces

In Palacios-Cueto, the CAAF finds no IAC during the sentencing case and the erroneous arguments of trial counsel were harmless.

Appellant faults his civilian defense counsel and trial defense counsel (hereinafter referred to collectively as defense counsel [, see, e.g., United States v. Boone, 42 M.J. 308 (C.A.A.F. 1995). And see United States v. Golston, 53 M.J. 61, 67 (C.A.A.F. 2000) (Gierke, J., concurring) (this team approach is equally applicable to the prosecution.)] for several deficiencies: failing to admit evidence of a potentially mitigating matter during sentencing; not advising him to address this and two other potentially mitigating matters in his unsworn statement; and not requesting tailored instructions regarding these matters. 
. . . 
[Appellant alleges] trial counsel committed prosecutorial misconduct when they stated that they represented ‘the pursuit of justice’ and argued justice would only be served if appellant was convicted and adjudged a sufficient punishment.” Appellant contends that circuit trial counsel and assistant trial counsel (hereinafter referred to collectively as trial counsel) made improper statements and may have caused the court-martial to find him guilty and to sentence him on considerations beyond the admitted evidence​.

In the AFCCA opinion, decided 2-1, we find the IAC allegations were broader than those taken up by CAAF: issues with a suppression motion, instructions, defense argument on findings, and discovery. The AFCCA majority determined there was no prejudicial IAC. Judge Meginley, dissenting, would have found "counsel [were] ineffective in failing to present an effective sentencing case." As to the trial counsel's erroneous arguments, Judge Meginley "believe[s] those arguments materially prejudiced Appellant, as there is a reasonable probability that the outcome of the proceeding would have been different had trial counsel not committed error." He ended, 

​In his closing argument, trial counsel admonished the members, “You will have the ultimate decision on . . . whether justice will be served, or whether the accused will be acquitted,” as if to say an acquittal would not be justice. Civilian defense counsel responded these are “words that should never come out of a prosecutor’s mouth;” I agree. The majority commented that “‘Justice’ must be tethered to the evidence and the burden of proof lest it be confused with justice for the victim or society or the military justice system.” Unfortunately for Appellant, looking at his case as a whole, I question whether “justice” has been served. I respectfully dissent.

From CAAF,

[S]ix [of eight] references to justice are not so easily dismissed. If we were to review these other statements in isolation, each of them would raise significant concerns. The members might have understood the twice-repeated statement during voir dire—“I’m here . . . in the pursuit of justice in this case”—to imply that Appellant’s defense counsel were not there to pursue justice. The members might have understood trial counsel’s request in his opening statement—“repair the little that can be repaired and bring justice to [A1C M.T.] by finding the accused guilty”—to mean that members should focus on providing relief to A1C M.T. rather than assessing the evidence. The members similarly might have understood trial counsel’s first remark during his findings argument—“you will have the ultimate decision . . . whether justice will be served, or whether the accused will be acquitted”—to mean that they should focus on justice rather than on the evidence. And both this remark and the other statement during findings ignore the Government’s burden of proving guilt. Finally, the second mention of justice during sentencing argument—“[A] sufficient punishment . . . will bring some form of closure to [A1C M.T.] for all that she has . . . endured in this year-and-a-half nightmare”—may have misguided the members.

The CAAF, essentially agreeing with the Government's arguments, finds there is no prejudicial error.

The Government, however, makes three responses. First, the Government argues that this Court should not view trial counsel’s statements in isolation, but instead under Donnelly, 416 U.S. at 637, must view them in context. Second, the Government argues that, in viewing the six problematic statements, we should not ascribe to them the “most damaging meaning . . . from the plethora of less damaging interpretations.” Id. at 647. Third, the Government argues that even if some statements were improper, the AFCCA was still correct in concluding that any error was harmless under the Fletcher factors. 

• CAAF agrees with AFCCA that "the misconduct was “moderately severe.”

But "not as severe as the misconduct that this Court unfortunately has seen in other cases. See, e.g., United States v. Norwood, 81 M.J. 12, 21 (C.A.A.F. 2021); United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019); United States v. Sewell, 76 M.J. 14, 17–19 (C.A.A.F. 2017); United States v. Frey, 73 M.J. 245, 249 (C.A.A.F. 2014); see also Berger v. United States, 295 U.S. 78, 84 (1935)."

• There we no objections, although, as some of us do from time to time, "counsel also effectively responded to most of what trial counsel said, especially with respect to the suggestion that justice required a finding of guilt."
• "[E]ffective curative measures were taken. The military judge gave the members complete and correct instructions and informed the members that these instructions should control their deliberations."
• It looks like the members may have had residual doubt or at least there was "a sentence that does not appear to have resulted from inflamed passions."

Yes, I'm with Judge Meginley on this one as to the arguments. I have in mind several points on this, which we've discussed before.

• ​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 Navy-Marine Corps Court of Criminal Appeals has observed that “it will not indulge in the naïve assumption that all prejudicial effects can be overcome by instructions to the jury.”  United States v. Knox, 46 M.J. 688, 691 (N.M. Ct. Crim. App. 1997), see also, Krulewitch v. United States, 336 U.S. 440, 453 (1949) (the idea that prejudicial effects can be overcome by a jury instruction is "unmitigated fiction"); Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) (limiting instructions are "a mental gymnastics which is beyond, not only [the jury's] power, but anybody else's.").
• ​Lisa Eichorn, Note, Social Science Findings and the Jury’s Ability to Disregard Evidence Under the Federal Rules of Evidence, 52 LAW & CONTEMP. PROBS. 341 (1989).
• J. Alexander Tanford, The Law and Psychology of Jury Instructions, 69 NEB. L. REV. 71 (1990).
• Peter Meijes Tiersma, Reforming the Language of Jury Instructions, 22 HOFSTRA L. REV. 37 (1993).
• Daniel M. Wegner, Ironic Processes of Mental Control.  101 PSCH. REV. 34 (1994).