The Military’s Problem of Prosecutorial Misconduct

Who cares?

For the last several years, most of the court-martial news to come out of the military has been the increase in sexual assaults and the military’s fervent response in prosecuting it.  But there is a problem.  Commander’s and prosecutor’s professional reviews (and thus their careers) are handled by higher-ups.  And no one wants to be seen as not taking allegations seriously.  This means prosecuting virtually every, single case, no matter how unbelievable the allegation.  In turn, this breeds a disregard for the facts and, from some prosecutors, a no-holds-barred approach to getting a conviction.  The constitution?  That’s just a nicety.  But, why should we care?  I mean – if someone makes an allegation, your guilty of something, right?  Actually, no.

The government’s role

As the Supreme Court has held, prosecutors are, “the representative, not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”[1]  Indeed, I have personally defended cases in which the alleged victim turned out to be straight up lying about rape to avoid getting in trouble (I do love emails . . . ).  But, nevertheless, prosecutors appear to forget their proper role in such cases, as announced by the Supreme Court, on an all too frequent basis.  Indeed, during my time at the Court of Appeals for the Armed Forces, we saw several cases involving allegations of prosecutorial misconduct.

One of the latest cases of note, heard before the Army Court of Criminal Appeals, is Murray v. United States.[2]  In that case, the Army Court denied the appellant relief based on a statutory time limitation.[3]  However, the Army Court, in a footnote, added that, “This court directs the Clerk of Court to process this allegation in accordance with

appropriate protocols regarding allegations of prosecutorial misconduct.”[4]

So, what does this mean?

This means two things.  First – it appears the Army Court recognized that there was a very strong possibility of prosecutorial misconduct in this case.  Second, the person against whom prosecutorial misconduct occurred still didn’t get any relief for it.


Unfortunately, this is not unusual.  Why?  Because often times the courts disagree over whether a prosecutor’s conduct even rises to the level of “misconduct.”[5]  And many of these judges are former prosecutors and defense counsel.[6]  And the problem doesn’t stop there. Sometimes it is an accused’s own appellate defense counsel who doesn’t do what is necessary to bring prosecutorial misconduct to an end.  For example, in United States v. Sewell, the issue was raised pursuant to United States v. Grostefon.[7],[8]  What this means is that Sewell’s own appellate defense counsel (provided by the Army), did not believe there was merit in raising the issue of prosecutorial misconduct against an Army prosecutor.  Maybe they genuinely didn’t believe in the case.  But it raises a question when the Court of Appeals for the Armed Forces agreed to hear the case – thereby showing merit in the issue.

An ongoing problem

Prosecutorial misconduct is an ongoing problem.  And, in my view, the only way to rectify it is with an appellate defense counsel who is not afraid to raise the issue before the courts and is not looking to “protect their own.”  If you need an appellate defense counsel who will do just that, give me a call.  As the former #1 appellate defense counsel in the Air Force, I’d be happy to discuss how I can assist you in reversing your conviction or reducing your sentence.  All initial consultations are free of charge.


[1] Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935) (emphasis added).

[2] ARMY MISC 20180025 (A. Ct. Crim. App. Jan 31, 2018).

[3] Id., slip op. at 4.

[4] Id., slip op. at 4, n.5.

[5] See e.g., United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017).  Importantly, this is the same prosecutor in the Army Court cases discussed above.

[6] Importantly, it is often the former prosecutors on a court that call out the prosecutorial misconduct.

[7] 12 M.J. 431 (CMA 1982).  For a review of cases the Court looked at, even when the military defense counsel did not believe in the issues raised, see my post here.

[8] See

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