Tuesday, July 2, 2019

Prosecutorial misconduct and favorite sons

Hello, Military Justice community. New blogger here. Butch Bracknell, retired Marine officer, current international security attorney, general gadfly. Follow me @ButchBracknell and blogging at www.outsidethebeltway.com

Gene Fidell's post yesterday on prosecutorial misconduct observed . . . condemned . . . no, actually explicitly called out in CAAF's Voorhees opinion launched me into an apoplectic reply directly to him -- which he then invited me to blog. The typical service reaction to an opinion like this is (a) if you're in the Air Force, probably a fairly significant emotional event for the senior leaders; (b) if you're not in the Air Force, you thank your lucky stars you're not in the Air Force, because CAAF just turned up the heat over there. Then after a couple weeks of impassioned blog posts and commentary, everything goes back to normal, like it never happened. In fact, CAAF has been ringing the bell as loudly as they can over the past 10 years on UCI, and not much changes in the services' UCI practices. And not much will until there are some real consequences -- like a senior leader or SJA being criminally charged for deliberate UCI, or a senior leader being retired at a lower grade, or a practitioner/senior leader being referred for a real, meaningful professional responsibility investigation and sanctions.

Because I am a Marine, I naturally gravitate toward the naval services in my analysis. In that vein, three egregious cases of prosecutorial/government misconduct stand out in my mind, notwithstanding the Gallagher case, which seems to be falling apart before the government's very eyes. In these cases, a clear pattern emerges of ignoring misconduct and failing to hold it accountable to protect favorite sons.

United States v. Santiago

The first case involved rank incompetence in handling a 2008 maiming in Iraq from a Marine playing quick draw and shooting a Navy Corpsman, Michael John Carpeso, in the face. No less than at least half a dozen Marine officers fumbled the case until it was barred for prosecution by Santiago's end of service. Only then did DOD go hat in hand to USDOJ to ask them to bring the charges they could bring to get some sort of punishment against the shooter, Corporal Santiago. The federal trial judge issued a memorandum opinion that excoriated the Marines for mishandling the case so badly that the only relief available was through the civilian courts. Judge Colleen McMahon laid waste to the Marine lawyers who fumbled this case:
"The court is, frankly, offended by the Government's suggestion that delay at the stage where the prejudice was effectively worked-when the case was with Marine JAG-was inadvertent because the JAG officers assigned to this matter were too busy with other matters to attend to the Santiago case. Overwork, bureaucratic bungling and non-investigatory administrative problems would not provide the sort of compelling justification needed to overcome a showing of actual prejudice by a defendant...but I see no evidence that any of these officer attorneys was overwhelmed with work. I am unimpressed with the claim that the press of twelve hour days got in the way of completing the simple assignment of preparing recall papers for Santiago; in my world, twelve hour days are hardly uncommon and afford no excuse for failing to get a job done."
This quote is one of several in the opinion that cuts the Marines involved in this miscarriage of justice off at the knees. She could not possibly have rung the bell of professional misconduct more loudly.

As a covered attorney under the Navy's professional responsibility rules, I submitted a professional responsibility complaint against all the lawyers involved because I knew no one else would and under the rules it was my duty under Rule 8.3. The result: no action by the Rules Counsel against any of the senior or supervisory attorneys. In fact, one of the officers who committed egregious professional responsibility offenses was later promoted, selected for very desirable assignments, and ultimately assigned as an appellate judge on the Navy-Marine Corps Court of Criminal Appeals.

It appears that being called out by name for incompetence by a Senate-confirmed federal trial judge in a memorandum opinion strengthens your career, rather than weakening it. It is a sad commentary on the practice of law in the Marine Corps and the duty owed those being led by senior Marine officers when a federal trial judge ends her opinion with this epilogue:
"I come away from this exercise with the firm conviction that HM3 Carpeso did not really matter much to the people who should have been fighting for justice for him. I have spent a lot of time with the record in this unusual case. One of the little things I noticed when reviewing the evidence was that Marines sign their internal correspondence with some variant of their familiar motto, "Semper Fidelis"--Always Faithful--either written out in full, or abbreviated as "Semper Fi," or even just "SF." After a while, it started to annoy me to see those proud words at the end of all those emails, because in those emails, and in their actions, the Marines displayed precious little eternal fidelity toward Michael John Carpeso. "
That commentary should be breathtaking to Marines, but it didn't even trigger a professional responsibility investigation for the senior officers involved, nor did it result in report to any state bars. These officers humiliated the Marine Corps, but the Corps took no action, lest it damage the career of a favorite son.

United States v. Salyer

The second involves a deliberate and blatant criminal violation of the Privacy Act by a Marine prosecutor and the subsequent complaints about a military judge's rulings to the judge's supervisor, as the prosecutor delved into the military judge's marriage records to verify he had married his wife when she was under the age of 18 (he did, and it was legal and culturally appropriate in her country of origin) in order to ambush him in voir dire in a child pornography case. CAAF reversed and dismissed, calling out the lawyers for specific prosecutorial misconduct in the form of UCI.
"Thus, there is the appearance in this record that the Government sought, through inappropriate means, disqualification of the military judge because it did not agree with the military judge’s ruling. An objective, disinterested observer, fully informed of these facts and circumstances, might well be left with the impression that the prosecution in a military trial has the power to manipulate which military judge presides in a given case depending on whether the military judge is viewed as favorable or unfavorable to the prosecution’s cause based on the Government’s access to a military judge’s personnel file and through access to the military judge’s chain of command. This, in our view, would foster the “intolerable strain on public perception” of the military justice system which the proscription against unlawful command influence and this Court guard against."
In other words, these government actors attempted to manipulate and bully the judge by committing unlawful acts to advance their prosecutorial agenda -- an agenda no SJA has any business indulging as the nominally neutral legal advisor to the convening authority. In doing so, they lost sight of the government's larger role in the military justice system: no only to prosecute cases, but to act as guardians of the process.

I filed a professional responsibility complaint against these lawyers, too, because again, I knew no one else would, because the rules literally required me to, and because I was hopping mad that an officer would attack my friend this way and violate federal law doing so. Again: no professional responsibility action, and the SJA who validated the government's misconduct was promoted and enjoyed a prestigious war college assignment. Once again, CAAF rang the bell loud and clear and once again, the Marine Corps marched right past this case as though it had never happened to protect a favorite son.

United States v. Barry

In this UCI government actor misconduct classic, the Navy JAG VADM Crawford was found to have committed actual UCI in the Barry case as a 2-star, yet was allowed to retire as a 3-star -- having committed deliberate post-trial obstruction of the defense and clemency case of a SEAL Chief Petty Officer. This instance of professional misconduct was not referred for a disciplinary proceeding, possibly because there was no person in the Department of the Navy empowered to convene a disciplinary proceeding against the very officer charged with enforcing professional responsibility among uniformed officers in the Department of the Navy. Moreover, to my knowledge, the matter was not referred to his state bar.

In my view, in this case the flags circled the wagons around him, because applying the statutory "last rank satisfactorily served" statutory criteria for his retirement grade review would have resulted in retirement as a one-star. That was likely too much accountability for flag officers accustomed to none.

Military prosecutors are emboldened to push the envelope when there are virtually zero professional responsibility concerns from prosecutorial misconduct, and they abandon their "seek justice within the bounds of the law, not merely to convict" prong of the ABA standard for prosecutors. Moreover, professional responsibility proceedings should be completely public, like most state bars, using the risk of disrepute with peers as an incentive to stay clear of ethical lines. See, for example, reports of proceedings in Texas, Virginia, and California. No such transparency exists in the Department of the Navy professional responsibility process.


  1. Welcome aboard, Butch. The post you refer to presented the views of a pseudonymous CAAFlog commenter. See http://globalmjreform.blogspot.com/2019/07/prosecutorial-misconduct-what-is-to-be.html

    1. They seek him here, they seek him there, they find him everywhere. Welcome Butch.

  2. Welcome aboard Butch. As an AF JAGC alumnus, who has been practicing military law for 40+ years, a tad shy of Gene's tenure, the AF JAGC has been singularly inept (or deliberately ignorant) about professional ethics, and it flows downhill. We had an AF TJAG file a seriously misleading (if not false) affidavit in United States v. Reynolds, 345 U.S. 1 (1953), we had a TJAG demoted to 0-6, for misconduct that he prosecuted vigorously, we had a very senior JAG court-martialed because (whoops) he'd never passed the Bar; and we had an ETHICAL 0-6 JAG quit his job as the Chief Prosecutor at GTMO when "ordered" to hide Brady evidence from the job [Disclaimer: "Mo" Davis is a friend of mine].

    Voorhees is simply more of the same, only CAAF dropped the ball imho. They could have directed that the TJAG refer the matter to the appropriate State Bar; they could have exercised their "supervisory" authority to fashion a remedy, etc., but they punted unfortunately.

    About 75 years ago, one of the great 2nd Circuit Judges, Judge Friendly, got fed up with prosecutorial misconduct, and wrote this in an opinion:

    "If we continue to do nothing practical to prevent such [prosecutorial] conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary." United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946) (Frank, J., dissenting).


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