Court martial conviction stands despite prosecutor’s misconduct

March 11, 2014 

Memo to military prosecutors: You can repeatedly misbehave in court and still win a conviction.

That, at any rate, is one take-away lesson from a decision by the U.S. Court of Appeals for the Armed Forces.

In a rather remarkable 3-2 decision, the court found that “ significant prosecutorial misconduct” occured during the court martial of Marine Corps enlisted man Charles C. Hornback. Nonetheless, the court also concluded that Hornback “ was not prejudiced” by the prosecutor’s misconduct, in part because the trial judge did everything possible to remove the taint.

Hornback was convicted of using “spice,” as well as several other charges, in a court martial convened at Marine Corps Air Station Miramar in San Diego. CAAFlog writes about the case here.

The unnamed prosecutor, according to the appeals court, “ repeatedly and persistently elicited improper testimony, despite repeated sustained objections as well as admonition and instruction from the military judge.” 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.

During this court-martial, trial counsel engaged in prosecutorial misconduct virtually from start to finish,” Judge Kevin A. Ohlson wrote in dissent.

Doesn’t matter. Mr. Hornback will have to live with his bad conduct discharge.

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