U.S. v. Rodriguez, 60 M.J. 87

Trial Stages: Sentence and Punishment: Argument

1. it is improper for trial counsel to seek unduly to inflame the passions and prejudices of the sentencing authority
2. there is no room at the bar of military justice for racial bias or appeals to race or ethnicity in a sentencing argument
3. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the majority of the federal circuits test for prejudice in cases of improper racial argument; in our view, unwarranted references to race or ethnicity have no place in either the military or civilian forum; the Supreme Court has not suggested otherwise; however, we see no reason not to adhere to the prevailing approach; our holding acknowledges the importance of a fair trial and the insidious impact that racial or ethnic bias, or stereotype, can have on justice; at the same time, our holding acknowledges that where, in fact, there is no prejudice to an accused, we should not forsake society’s other interests in the timely and efficient administration of justice, the interests of victims, and in the military context, the potential impact on national security deployment
2. appellant did not suffer material prejudice to a substantial right where trial counsel’s argument was before a military judge alone; military judges are presumed to know the law and to follow it absent clear evidence to the contrary; finally, there is no indication in the record that the statement affected the military judge or impacted Appellant’s sentence; appellant’s maximum exposure for his offenses was, among other punishments, over 54 years of confinement and a dishonorable discharge; his adjudged sentence, however, included only three years of confinement, total forfeitures, a fine, and a dishonorable discharge
3. we caution that prejudice determinations with respect to improper racial argument are fact specific; in a given situation, racial or ethnic remarks, including before a military judge, may deny an accused a fair trial; race is different
4. it is the rare case indeed, involving the most tangential allusion, where the unwarranted reference to race or ethnicity in argument will not be obvious error; our concern with unwarranted statements about race and ethnicity are magnified when the trial is before members; this is true whether or not it is motivated by animus, as we cannot ultimately know what effect, if any, such statements may have on the fact finder or sentencing authority

Trial Stages: Appeals: Preservation of Error / Plain Error

1. failure to object to improper argument may constitute waiver; in the absence of an objection, we review for plain error; plain error occurs when there is (1) error, (2) the error is obvious, and (3) the error results in material prejudice to a substantial right