TRIAL STAGES: Sentence and Punishment:  Argument

2022 (October Term)

United States v. Witt, 83 M.J. 282 (even assuming error in the trial counsel’s sentencing argument in this case, there was no evidence that the arguments resulted in material prejudice to any of appellant’s substantial rights where the weight of the evidence supporting the conviction was strong enough to establish a lack of prejudice in and of itself; appellant confessed to a set of incredibly vicious and deliberate stabbings resulting in the death of a young married couple and permanent injury to the third victim; yet despite trial counsel’s request for the death sentence and the nature of appellant’s crimes, the members unanimously sentenced appellant to life without parole, suggesting that they believed the aggravating circumstances were substantially outweighed by the extenuating and mitigating circumstances). 

2020 (October Term)

United States v. Tyler, 81 M.J. 108 (typically, trial counsel is prohibited from injecting into argument irrelevant matters, such as personal opinions and facts not in evidence; however, trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence). 

(in this case, where the government did not offer the victim statements under RCM 1001(b)(4) and the statements were instead admitted as court exhibits by the military judge pursuant to RCM 1001A (now RCM 1001(c)), the military judge erred in reasoning that trial counsel could argue the content of the unsworn statements simply because they could have been admitted as substantive evidence under RCM 1001(b)(4); RCM 1001A (now RCM 1001(c)) belongs to the victim and is separate and distinct from RCM 1001(b)(4)).

(if unsworn victim statements are part of the evidence of record, they can be commented on by counsel in presentencing argument). 

(an unsworn victim statement, although not evidence, can nevertheless be commented on by either party in presentencing argument; and counsel’s comments concerning a victim’s unsworn statement may include both references and arguments). 

United States v. Norwood, 81 M.J. 12 (a prosecutor proffers an improper argument amounting to prosecutorial misconduct when the argument oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense).   

(a prosecutor’s reference to an accused as a child molester was a permissible characterization supported by the charge and the evidence where the accused was prosecuted for and convicted of one specification of sexual abuse of a child). 

(arguing an inflammatory hypothetical scenario with no basis in evidence amounts to improper argument). 

(trial counsel may properly ask for a severe sentence, but they cannot threaten the court members with the specter of contempt or ostracism if they reject their request). 

2016 (October Term)

United States v. Pabelona, 76 M.J. 9 (prosecutorial misconduct is action or inaction by a prosecutor in violation of some legal norm or standard, such as a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon; prosecutorial misconduct is behavior by the prosecuting attorney that oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense; the trial counsel may prosecute with earnestness and vigor, but, while he may strike hard blows, he is not at liberty to strike foul ones; it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one). 

(where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone).    

(in this case, even if certain of trial counsel’s comments in closing argument on the merits and in argument as to the sentence were improper, there was no evidence that the trial counsel’s arguments resulted in material prejudice to any of appellant’s substantial rights, where (1) the weight of the evidence supporting the conviction was strong enough to establish lack of prejudice in and of itself, (2) appellant was convicted on only two out of four charges, indicating the members were able to weigh the evidence offered at trial and make an independent assessment of appellant’s guilt or innocence with regard to each separate specification, and (3) his sentence was significantly less than that requested by the government). 

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (trial counsel may strike hard blows in argument but he is not at liberty to strike foul ones; he may argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; this includes arguments in capital cases concerning the human cost of an accused’s capital crime). 

(trial counsel may make such general deterrence arguments when they are not the government’s only argument and when the military judge properly instructs the members about conducting an individualized consideration of the sentence). 

2013 (September Term)

United States v. Frey, 73 M.J. 245 (trial counsel is entitled to argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence; however, the RCMs and existing case law both establish that it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members). 

(in this case, trial counsel’s sentencing argument was improper in a prosecution for engaging in sexual contact with a child and engaging in a sexual act with a child, where trial counsel appealed to the members to apply their knowledge of the “ways of the world” to sentence appellant based on a risk of recidivism through serial molestation).  

(RCM 1001, governing presentencing procedure, states that during argument, trial counsel may refer to generally accepted sentencing philosophies including specific deterrence of misconduct by the accused; such sentencing theories also encompass protecting society from the wrongdoer and general deterrence, preventing others from committing similar offenses in the future). 

(trial counsel in this case overstepped the bounds of proper argument in requesting that the members draw upon information not in evidence (their knowledge of the “ways of the world”) to make a specific conclusion that the accused was a serial child molester who had offended before and in theory would offend again; one is hard pressed to imagine many statements more damaging than the implication that someone who has been convicted of molesting a single child will go on to molest many more). 

(whether or not a person convicted of a particular offense is more or less likely to offend again or become a serial recidivist is a question requiring expert testimony, empirical research, and scientific and psychological method, inquiry, and evidence; recidivism is not a matter resolved through appeal to common sense or a member’s knowledge of “the ways of the world”). 

(the term “ways of the world” refers to court members’ evaluation of lay testimony, defenses, and witness credibility; the term can include the fact that a single punch to the torso or head can kill or cause serious bodily injury, or that an accused recanted his confession after talking to a lawyer; it does not, however, include a likelihood that an accused used drugs given proof he had used them before, or the recidivism rates of child molesters).

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).