U.S. v. Diffoot, 54 M.J. 149

First Principles: Constitutional Matters: Generally

1. the military justice system established by Congress in accordance with the Constitution does not permit a conviction based on an accused’s race or an accused’s association, and argument urging such a result prejudicially violates appellant’s due process right to a fundamentally fair trial

Trial Stages: Merits: Argument

1. trial counsel’s closing argument, which argued that appellant should be convicted because he was the Hispanic associate of two Hispanic Marines who admitted committing the larceny crimes, prejudicially violated appellant’s due process right to a fundamentally fair trial: (1) it improperly attempted to enhance the prosecution’s case based on the defendant’s race and his criminal associations; (2) the comments were made during closing argument, a critical point in the trial; (3) the evidence of appellant’s guilt was not overwhelming; (4) there was no effort by the trial counsel or military judge to disavow the improper argument; and (5) there was no effort to limit consideration of appellant’s ethnicity and associations to proper purposes
2. even in the absence of an objection, court will act to remedy serious injustice and preserve the integrity of the military justice system where trial counsel argued that appellant should be convicted because he was the Hispanic associate of two Hispanic Marines who admitted committing the larceny crimes

Trial Stages: Appeals: Preservation of Error / Plain Error

1. even in the absence of an objection, court will act to remedy serious injustice and preserve the integrity of the military justice system where trial counsel argued that appellant should be convicted because he was the Hispanic associate of two Hispanic Marines who admitted committing the larceny crimes