“Every attorney in a court-martial has a duty to uphold the integrity of the military justice system.” United States v. Andrews, 77 M.J. 404 (C.A.A.F. 2018).  The U.S. Court of Appeals for the Armed Forces (CAAF) decided the Air Force case of United v. Voorhees, on June 27, 2019.  Major Vorhees, (USAF) was convicted by a general court-martial of one specification of sexual assault and five specifications of conduct unbecoming an officer and a gentleman.

On appeal, Major Vorhees argued that the military prosecutor used improper arguments to win his case.  Throughout the proceedings, the military prosecutor “accused defense counsel of lying, attacked his character, and called Major Vorhee’s a ‘perverted, sick, and narcissistic joke of an officer.’”

In deciding the case, CAAF stated: “it is improper for trial counsel to attempt to win favor with the members by maligning defense counsel, including accusing the defense counsel of fabrication…when trial counsel maligned defense counsel, he risked both turning the trial into a popularity contest such that they may not have been able to objectively weigh the evidence.”

Perhaps even more surprising is that the defense attorney did not object and the military judge never stopped the military prosecutor from engaging in this behavior. In their opinion, CAAF criticizes the military judge and the military prosecutor’s superiors for not doing more. However, despite these findings, CAAF concludes that, “although trial counsel’s conduct reveals a lack of practical skills and level of courtroom etiquette far below that which we expect…we are confident that the members convicted the appellant on the basis of the evidence alone. There was, therefore, no prejudice to Appellant’s substantial rights.”

CAAF’s bark is far worse than their bite here.  They condemn the prosecutor for his bad behavior but uphold the conviction.  How can CAAF possibly know whether those jurors were improperly influenced by obvious prosecutorial misconduct?

 Here’s another point: defense attorneys must understand the rules and they must object to this behavior on the spot.  A strong defense attorney would not have allowed the Government to manipulate the rules and dominate the courtroom.