U.S. v. BarrazaMartinez, 58 M.J. 173

Trial Stages: Sentence and Punishment: Argument

1. 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
2. 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
3. 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

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

1. in light of the defense counsel’s failure to object, the Court reviews the trial counsel’s argument for plain error; appellant has the burden of persuading this Court that there was plain error
2. in United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999), this Court set out a three-part test for resolving claims of disparate treatment; when reviewing a decision of a Court of Criminal Appeals, this Court limits its review to three questions of law: (1) whether the cases are closely related, (2) whether the cases resulted in highly disparate sentences, and (3) if the requested relief is not granted by the court below in a closely related case involving a highly disparate sentence, whether there is a rational basis for the differences between or among the cases; this Court's standard of review is whether a Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary sentence appropriateness role