2012 (September Term)
United States v. Halpin, 71 M.J. 477 (during sentencing argument, the trial counsel is at liberty to strike hard, but not foul, blows; as a zealous advocate for the government, trial counsel may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence).
2010 (Septermber Term)
United States v. Marsh, 70 M.J. 101 (merely urging the court members to consider an unsworn statement for what it is falls within the boundary of fair prosecutorial comment; however, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members).
(trial counsel’s statement during sentencing argument asking the panel members to give less weight to appellant’s unsworn statement because he was not subject to cross-examination fell within the boundary of fair prosecutorial comment, where appellant’s statement was not subject to cross-examination and the members could legitimately consider that fact in assessing its credibility).
(trial counsel’s sentencing argument to the court members that they could not trust appellant, who worked as a helicopter repairman, with the lives of pilots because of his conviction for making a false official statement during a rape investigation and that invited them to put themselves in an aircraft repaired by appellant was unduly inflammatory and constituted plain and obvious error; there was no rational nexus between the fact that appellant lied during the rape investigation and the assertion that he could not be trusted with the lives of pilots in the future; trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge; and this argument was not supported by the testimony of appellant’s squad leader who testified that appellant was in the top ten percent of the soldiers he had supervised, but was currently restricted from working on airplanes during the court-martial because the proceedings might interfere with his thought process while he was working on an aircraft; in fact, appellant’s squad leader and first sergeant testified that they would serve and deploy with appellant again).
(trial counsel is at liberty to strike hard, but not foul, blows; as a result, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members; the trial counsel also must not inject matters that are not relevant into argument; nor can the trial counsel ask court members to place themselves in the shoes of the victim or a near relative).
(generally, potential harm from improper comments can be cured through a proper curative instruction).
2007
United
States v. Erickson, 65 M.J. 221 (when arguing
for what is perceived to be an appropriate sentence, the trial counsel
is at liberty to strike hard, but not foul, blows).
United States v. Schroder, 65 M.J. 49 (trial counsel is
at liberty to strike hard, but not foul, blows; to that end, it is error for
trial counsel to make arguments that unduly inflame the passions or
prejudices of the court members).
(an accused is supposed to be
tried and sentenced as an individual on the basis of the offenses
charged and the legally and logically relevant evidence presented;
thus, trial counsel is also prohibited from injecting into argument
irrelevant matters, such as personal opinions and facts not in
evidence).
(although MRE 414(a) provides
that evidence of uncharged misconduct may be considered for any matter
to which it is relevant, there is a risk with propensity evidence that
an accused may be convicted and sentenced based on uncharged conduct
and not the acts for which he is on trial; as a result, where MRE 414
evidence is admitted, there is a need for procedural safeguards to
delimit the use of such evidence; one such safeguard is to ensure that
trial counsel does not use such evidence to unduly inflame the members;
the MRE 414 safeguards could be undermined if trial counsel’s comments
were permitted to range outside the realm of legally relevant matters
and express a sense of outrage and injustice regarding the victims of
uncharged misconduct).
(in child molestation case,
trial counsel erred in arguing that the members should render justice
for the purported victim of uncharged misconduct which was admitted as
propensity evidence; the argument invited the members to convict and
punish appellant for his uncharged misconduct, as opposed to using that
misconduct to inform their judgments regarding the charged conduct;
this error was also plain and obvious).
United States v. Paxton, 64 M.J. 484 (the prosecution
may not comment on an accused’s lack of remorse or on his recalcitrance
in refusing to admit guilt after findings unless there is testimony
from the accused, an unsworn statement, or other evidence properly
before the court members to support the comment; in addition, the
comment may not be drawn from an accused’s decision not to testify or
from his pleas of not guilty).
(a sentencing argument by
trial counsel which comments upon an accused’s exercise of his or her
constitutionally protected rights is beyond the bounds of fair comment).
(an accused’s refusal to admit
guilt after findings may be an appropriate factor for the members’
consideration in their sentencing deliberation on rehabilitation
potential but only if a proper foundation has been laid).
(as a general rule, the
predicate foundation for the prosecution to comment on an accused’s
lack of remorse or on his recalcitrance in refusing to admit guilt
after findings is that an accused has either testified or has made an
unsworn statement and has either expressed no remorse or his expression
of remorse can be arguably construed as being shallow, artificial, or
contrived; in addition, other evidence in the record may also give rise
to the inference that an accused is not remorseful, but the inference
may not be drawn from his decision not to testify or from his pleas of
not guilty).
(counsel are cautioned to
limit arguments on sentencing to evidence in the record and to such
fair inferences as may be drawn therefrom).
2004
United
States v. Rodriguez, 60 MJ 87 (it is improper for
trial
counsel to seek
unduly to
inflame the passions and prejudices of the sentencing authority).
(there
is no
room at the bar of military justice for racial bias or appeals to race
or
ethnicity in a sentencing argument).
(the
Constitution prohibits racially biased prosecutorial arguments; in our
view,
unwarranted references to race or ethnicity have no place in either the
military or civilian forum).
2003
United
States v. BarrazaMartinez, 58 MJ 173 (regarding
sentencing
arguments, R.C.M. 1001(g) provides that trial counsel may not in
argument
purport to speak for the convening authority or any higher authority,
or refer
to the views of such authorities or any policy directive relative to
punishment
or to any punishment or quantum of punishment greater than that
court-martial
may adjudge; reference to departmental or command policies can create
the
appearance of unlawful command influence; reference to such policies is
an area
in which trial counsel are well advised to tread lightly; on the other
hand, it
is proper for a trial counsel to comment on contemporary history or
matters of
common knowledge within the community, such as referencing America's
war on
drugs).
(a trial counsel is charged with being a zealous advocate for the
government; during sentencing arguments, the trial counsel is at
liberty to
strike hard, but not foul, blows; trial counsel may not, however, seek
unduly
to inflame the passions or prejudices of the court members).
(trial counsel’s reference to appellant as "almost a traitor"
gives the Court pause; the term "traitor" is particularly odious,
particularly in the military community; on the other hand, trial
counsel used
the term only once, and he qualified it with the word "almost;" the
term traitor is defined as (1) one who betrays another’s trust or is
false to
an obligation or duty, and (2) one who commits treason; treason is
defined as
the betrayal of a trust or treachery; it was fair comment on the
evidence for
trial counsel to argue that appellant had betrayed the trust placed in
him as a
member of the U.S. Marine Corps; defense counsel did not consider the
argument
sufficiently offensive to warrant an objection; and while this Court
does not
condone the trial counsel’s use of this potentially inflammatory term,
it holds
that appellant has not carried his burden of persuading the Court that
the
sentencing argument characterizing him as "almost a traitor" was
plain error).
2002
United
States v. Burt, 56 MJ 261 (counsel errs by
conceding the
appropriateness of a punitive discharge when an accused wishes to
remain in the
service or otherwise avoid such a separation).
2001
United States v. Pineda, 54 MJ 298 (a defense counsel may not ask for a punitive separation from the service in contravention of an accused’s wishes, and a military judge must make appropriate inquiries where a conflict exists between defense counsel’s request and an accused’s apparent wishes).
(military judge failed to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate where there was no indication on the record that appellant desired punitive separation).
(appellant was not prejudiced by military judge’s failure to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate; where the facts of a given case compel a conclusion that a bad-conduct discharge was reasonably likely, a new sentence hearing is not normally ordered; here, appellant implicitly acknowledged the reasonable certainty of a punitive discharge where he was convicted of numerous offenses reflecting his repeated abuse of government property entrusted to him).
United States v. Bolkan, 55 MJ 425 (when the accused asks the sentencing authority to be allowed to remain on active duty, defense counsel errs by conceding the propriety of a punitive discharge).
(assuming that defense counsel conceded the appropriateness of a punitive discharge and that the military judge erred in not conducting an inquiry into whether defense counsel’s argument reflected appellant’s desires, any error was harmless where: (1) defense counsel’s argument made a strategic decision recognizing that if the members must choose between confinement and a bad-conduct discharge, they should give appellant the punitive discharge; (2) defense counsel was realistic in her approach by accepting the force of adverse facts; and, (3) this was a case in which there was no reasonable probability of retention in the service).
2000
United
States v. Garren, 53 MJ 142 (trial counsel’s
sentencing
comment that appellant did not accept responsibility for his conduct
was fair
comment upon the evidence, the charges, and appellant’s unsworn
statement).
United
States v. Baer, 53 MJ 235 (“Golden Rule”
arguments, asking
the members to put themselves in the victim’s place, are improper and
impermissible in the military justice system).
(argument asking the members to imagine the victim’s fear, pain,
terror, and
anguish is permissible, since it is simply asking the members to
consider
victim impact evidence; but counsel must be adequately mindful of the
conceptual difference between asking the members to consider the pain
and fear
of the victim, and asking the members to put themselves in the victim’s
place).
(argument by a trial counsel must be viewed within the context of
the entire
court-martial and not in isolation with no regard to context, and the
argument
must also be evaluated for its literal adherence to the standards of
proper
argument).
(trial counsel’s sentencing argument, which asked the members to
imagine the
victim “sitting there as these people beat him” and to “imagine the
pain and
agony”, in context, was an effort to describe the particular situation
in which
the victim was placed, an entirely appropriate consideration for the
members in
determining an appropriate sentence).
(even if trial counsel’s sentencing argument, which asked the
members to
imagine the victim “sitting there as these people beat him” and to
“imagine the
pain and agony”, was a deliberate strategy to indulge in improper
argument, the
relative lightness of the sentence appellant received indicated that
the argument
did not bear fruit, and Court found that appellant’s substantial rights
were
not materially prejudiced).
(claims of improper advocacy must rest on the peculiar facts of each
case,
and the touchstone for improper argument is the argument viewed in its
entire
context rather than the calculations of the counsel making the
argument).
United
States v. Jenkins, 54 MJ 12 (failure to object to
improper
argument before the military judge begins to instruct on sentencing
constitutes
waiver of the objection; to overcome waiver, an appellant must
demonstrate
plain error – he must show there was error, that the error was plain or
obvious, and that the error materially prejudiced his substantial
rights).
(improper sentencing argument can often be cured by an appropriate
limiting
instruction).