United States v. Matti (Updated)

In Matti, AFCCA found no plain error in numerous improper trial counsel arguments. CAAF granted, but also specified a jurisdictional error.

CAAF said the following on the granted issue.

 We further hold that even though trial counsel made numerous improper comments in his argument on findings and rebuttal, these errors were harmless. We therefore affirm the decision of the AFCCA. Despite finding no prejudicial error in this case, we are troubled by the recurring instances of improper argument at courts-martial. An Appendix to this opinion provides a non-exhaustive list of commonly violated restrictions on arguments. The Court recommends that military judges and counsel carefully study this Appendix. The Court further encourages military judges to ask counsel whether they have read and understood the Appendix before they proceed to argument.

Note this is an Air Force case.

24 Feb. 26, AFCCA decided United States v. Kindred. One of the issues related to "whether the special trial counsel’s (STC’s) closing argument was improper and warrants relief[?]"

Some of the relevant statements ( emphasis in the original) include:

This is not a case like he said, she said. 

Now, in some cases, you may only have the testimony of the two people who are in the room; or if the two people in the room are the only people who know what happened, you might only have the testimony of one. In this case, you don’t have to just rely on the testimony of the one person – the one victim in the room because you have a lot more. In many cases, you might not have evidence of them reporting right away, evidence of pictures taken, of reports made, or statements made exactly immediately after it happened. But in this case, we do.

What about [AS]? Nothing refuted what [AS] said on the stand.

When she tries to leave, he blocks her. He won’t let her leave. He calls her a liar that she doesn’t know where [DW] is, a liar that she has to go do laundry. He doesn’t let her leave for
five to ten minutes. He puts his hand on her chest and says “Are you scared?” This is undeniable. This has not been refuted. There is nothing contradicting [AS’s] testimony.

AFCCA found error and set aside two specifications to which the comments related.

As to bolstering or 

I believe the evidence shows that.

[W]e know she didn’t freely give agreement to the sex. In fact, we know that she actively told him “No[.]

I think that is what he did.

So she came in here and she told the truth.

I don’t know any other explanation of why she would have been lying. 

She sat here and took an oath and was as honest as she possibly could be with all of us.

Citing Matti, AFCCA finds expressed opinions about the evidence is error, but harmless. And witness vouching was more ambiguous and the court assumed error, but again found that harmless.

Back to Matti and CAAF.

Numerous cases coming before this Court, however, reveal that the efforts to educate counsel about improper arguments have not been sufficient to eliminate them from courts-martial. For example, although this Court has held repeatedly that trial counsel may not vouch for witnesses, express personal opinions, and so forth, errors continue to occur. These continued mistakes risk harm to the accused and reflect poorly on the military justice system.
. . .
APPENDIX
Because of the persistent problem of trial counsel using improper arguments during courts-martial, the Court offers the following non-exhaustive compendium of instances when this Court has identified areas of concern. Perhaps it will provide some helpful guidance regarding the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor [see, e.g., United States v. Voorhees.]

Items 6 and 7 refer to comments about an accused's silence as a problem. Excuse moi--did not each trial counsel in such a case graduate from law school and get licensed?

We remind all MJs of their "sua sponte duty to insure [sic] that an accused receives a fair trial." "At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument.". MJs are neither "mere figurehead[s]" nor are they "umpire[s] in a contest between the Government and accused." 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. [A] 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). Andrews, 77 M.J. 393, 403-04 (C.A.A.F. 2018).

• Trial counsel is not the sole attorney at fault during the court-martial. As we admonished in Andrews. 
• 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." Fletcher, 62 M.J. at 182.
• "Every attorney in a court-martial has a duty to uphold the integrity of the military justice system," and multiple experienced attorneys failed to do so here. [United States v.] Andrews, 77 M.J. [393, 398 (C.A.A.F. 2018)].​

United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019).

The history of this persistent problem is a prologue to its continued persistence. At what point, if ever, will an appeals court step in and set aside a conviction, despite the defense's failure to object, the military judge's silence in the worst situations, and Article 59's mandate? To coopt someone else's theme, "I’m not sanguine, not sanguine at all." Inspector Wilkins, of Scotland Yard, in James Anderson's The Affair of the Bloodstained Egg.

Footnote: Matti is the eighth opinion. Judge Maggs has authored five, CJ Ohlson one, and two are per curiam.