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The requirement that misconduct must have prejudiced the verdict in a criminal case in order for a conviction to be overturned on appeal has allowed many a prosecutor to escape consequences for his unethical conduct. This “harmless error” rule has reared its ugly head again in a case out of the U.S. Court of Appeals for the Armed Forces (CAAF), decided last week.

Even where misconduct is truly egregious, an overwhelming showing of guilt is enough to deem it “harmless” under a court’s analysis – which is what happened here in United States v. Hornback, No. 13-0442. CAAF held that “significant prosecutorial misconduct occurred, but that the error was ultimately not prejudicial,” affirming the judgment of the Navy-Marine Corps Court of Criminal Appeals and upholding Hornback’s convictions. (Court’s opinion at p. 1).

The Court was unanimous in its finding of error, but was narrowly split (3-2) on whether that error was prejudicial.

Hornback was convicted of using “spice” (a type of synthetic marjijuana), signing a false official statement, and larceny of military property in violation of the Uniform Code of Military Justice. Throughout his trial, an unnamed prosecutor repeatedly committed misconduct in the form of soliciting impermissible character and other acts evidence following repeated instructions from the judge not to do so (p. 4-8), and making improper references to the defendant’s character during closing argument (p. 10-11). Writing for the majority, Judge Stucky found:

The prosecutorial misconduct in this case was sustained and severe. Trial counsel attempted to elicit improper testimony from nearly every witness called during the Government’s caseiin-chief, and made arguably improper argument during her closing argument. She repeatedly appeared unable to either understand or abide by the military judge’s rulings and instruction during the two-and-a-half day trial on the merits.

Despite this, the majority decided that the trial judge’s striking of the prosecutors’ comments from the record and direction to the jury not to “conclude based on any of that evidence that the accused is a bad person or has general criminal tendencies and that he, therefore, committed the offenses charged” were sufficient to remove the taint on the trial caused by the prosecutor’s improper conduct such that the verdict was not prejudiced.

Reporting on the outcome of the appeal, the Modesto Bee highlights how outrageous this conclusion seems in light of the Court’s observations about the prosecutor’s conduct:

The prosecutor, the court observed, appeared to be “inexperienced, ill prepared, and unsupervised in this case,” prompting the court to “ wonder what her supervisors were doing during the course of Appellant’s trial.”

The misconduct was “sustained and severe,” the court said. The prosecutor made “clumsy” efforts to slip in improper testimony. The misconduct was “repeated.” The prosecutor called the defendant “a criminal infection that is a plague to the Marine Corps.” The judge sustained defense objections 15 times, and repeatedly summoned attorneys for discussions at the bench.

In his dissent, Judge Kevin A. Ohlson wrote  that “During this court-martial, trial counsel engaged in prosecutorial misconduct virtually from start to finish.” And yet, the conviction stands, the prosecutor is unnamed (so no record of her misconduct can be compiled), and the system once again fails to account for troubling prosecutorial misconduct.

Read the Court’s opinion in full here.

Read a previous post about the impact of the harmless error rule and the unwillingness of courts to name prosecutors who foul up here.


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