U.S. v. Baer, 53 M.J. 235

Trial Stages: Sentence and Punishment: Argument

1. “Golden Rule” arguments, asking the members to put themselves in the victim’s place, are improper and impermissible in the military justice system
2. 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
3. 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
4. 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
5. 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
6. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. 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

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused