U.S. v. Erickson, 65 M.J. 221

Military Justice Personnel: Prosecution Function: Trial Counsel

1. when arguing for what is perceived to be an appropriate sentence, the trial counsel is at liberty to strike hard, but not foul, blows

Military Justice Personnel: Military Judge: Generally

1. military judges are presumed to know the law and to follow it absent clear evidence to the contrary; as part of this presumption, military judges are presumed to be able to distinguish between proper and improper sentencing arguments

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Presumptions, Inferences

1. military judges are presumed to know the law and to follow it absent clear evidence to the contrary; as part of this presumption, military judges are presumed to be able to distinguish between proper and improper sentencing arguments

Trial Stages: Sentence and Punishment: Evidence

1. RCM 1001 allows the military judge to consider an accused’s admitted conduct with his children as well as the negative and continuing impact of that conduct as an aggravating factor; the sentence adjudged must be based on all relevant sentencing factors

Trial Stages: Sentence and Punishment: Argument

1. when arguing for what is perceived to be an appropriate sentence, the trial counsel is at liberty to strike hard, but not foul, blows

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach involves a balancing of the following three Fletcher factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction
2. in assessing prejudice in a judge alone trial in which prosecutorial misconduct during the trial counsel’s sentencing argument was alleged to have resulted in plain error, an appellate court considers the Fletcher factors to determine whether the trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that appellant was sentenced on the basis of the evidence alone
3. trial counsel’s comparison of the accused to Hitler and Osama bin Laden during his sentencing argument in a child sexual abuse case did not result in material prejudice to the accused’s substantial rights and therefore did not result in plain error, where (1) the misconduct was not severe considering that the improper comments amounted to less than a single page out of a 22-page sentencing argument, did not permeate the entire argument, and were made in the context of a permissible theme – that unseen evil is worse than open and obvious evil; (2) the military judge in this judge alone trial is presumed to be able to distinguish between proper and improper sentencing arguments and there is nothing in the record that reflects that the military judge was biased or in any way swayed by the comments; and (3) the weight of the evidence clearly supports the determination that the accused would have received the same sentence irrespective of trial counsel’s improper comments considering that the evidence revealed not only that the accused had sexually abused his two daughters over a sustained period, but that he manipulated them into believing that the conduct was appropriate and that this abuse left his children emotionally scarred

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when a defense attorney fails to object to a sentencing argument at the time of trial, appellate courts review the statement for plain error
2. in order to prevail under a plain error analysis, appellant must demonstrate that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right
3. in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach involves a balancing of the following three Fletcher factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction
4. in assessing prejudice in a judge alone trial in which prosecutorial misconduct during the trial counsel’s sentencing argument was alleged to have resulted in plain error, an appellate court considers the Fletcher factors to determine whether the trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that appellant was sentenced on the basis of the evidence alone
5. trial counsel’s comparison of the accused to Hitler and Osama bin Laden during his sentencing argument in a child sexual abuse case did not result in material prejudice to the accused’s substantial rights and therefore did not result in plain error, where (1) the misconduct was not severe considering that the improper comments amounted to less than a single page out of a 22-page sentencing argument, did not permeate the entire argument, and were made in the context of a permissible theme – that unseen evil is worse than open and obvious evil; (2) the military judge in this judge alone trial is presumed to be able to distinguish between proper and improper sentencing arguments and there is nothing in the record that reflects that the military judge was biased or in any way swayed by the comments; and (3) the weight of the evidence clearly supports the determination that the accused would have received the same sentence irrespective of trial counsel’s improper comments considering that the evidence revealed not only that the accused had sexually abused his two daughters over a sustained period, but that he manipulated them into believing that the conduct was appropriate and that this abuse left his children emotionally scarred

Trial Stages: Appeals: Law of the Case

1. where neither party appeals a ruling of the court below, that ruling will normally be regarded as law of the case and binding upon the parties; where there is no appeal, a superior court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it

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

1. when a defense attorney fails to object to a sentencing argument at the time of trial, appellate courts review the statement for plain error
2. in order to prevail under a plain error analysis, appellant must demonstrate that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right
3. where neither party appeals a ruling of the court below, that ruling will normally be regarded as law of the case and binding upon the parties; where there is no appeal, a superior court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it
4. in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach involves a balancing of the following three Fletcher factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction

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

1. in assessing prejudice in a judge alone trial in which prosecutorial misconduct during the trial counsel’s sentencing argument was alleged to have resulted in plain error, an appellate court considers the Fletcher factors to determine whether the trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that appellant was sentenced on the basis of the evidence alone