U.S. v. Marsh, 70 M.J. 101

Military Justice Personnel: Prosecution Function: Trial Counsel

1. merely urging the court members to consider an unsworn statement for what it is falls within the boundary of fair prosecutorial comment; however, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members
2. trial counsel’s statement during sentencing argument asking the panel members to give less weight to appellant’s unsworn statement because he was not subject to cross-examination fell within the boundary of fair prosecutorial comment, where appellant’s statement was not subject to cross-examination and the members could legitimately consider that fact in assessing its credibility
3. trial counsel’s sentencing argument to the court members that they could not trust appellant, who worked as a helicopter repairman, with the lives of pilots because of his conviction for making a false official statement during a rape investigation and that invited them to put themselves in an aircraft repaired by appellant was unduly inflammatory and constituted plain and obvious error; there was no rational nexus between the fact that appellant lied during the rape investigation and the assertion that he could not be trusted with the lives of pilots in the future; trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge; and this argument was not supported by the testimony of appellant’s squad leader who testified that appellant was in the top ten percent of the soldiers he had supervised, but was currently restricted from working on airplanes during the court-martial because the proceedings might interfere with his thought process while he was working on an aircraft; in fact, appellant’s squad leader and first sergeant testified that they would serve and deploy with appellant again
4. trial counsel is at liberty to strike hard, but not foul, blows; as a result, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members; the trial counsel also must not inject matters that are not relevant into argument; nor can the trial counsel ask court members to place themselves in the shoes of the victim or a near relative

Trial Stages: Sentence and Punishment: Argument

1. merely urging the court members to consider an unsworn statement for what it is falls within the boundary of fair prosecutorial comment; however, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members
2. trial counsel’s statement during sentencing argument asking the panel members to give less weight to appellant’s unsworn statement because he was not subject to cross-examination fell within the boundary of fair prosecutorial comment, where appellant’s statement was not subject to cross-examination and the members could legitimately consider that fact in assessing its credibility
3. trial counsel’s sentencing argument to the court members that they could not trust appellant, who worked as a helicopter repairman, with the lives of pilots because of his conviction for making a false official statement during a rape investigation and that invited them to put themselves in an aircraft repaired by appellant was unduly inflammatory and constituted plain and obvious error; there was no rational nexus between the fact that appellant lied during the rape investigation and the assertion that he could not be trusted with the lives of pilots in the future; trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge; and this argument was not supported by the testimony of appellant’s squad leader who testified that appellant was in the top ten percent of the soldiers he had supervised, but was currently restricted from working on airplanes during the court-martial because the proceedings might interfere with his thought process while he was working on an aircraft; in fact, appellant’s squad leader and first sergeant testified that they would serve and deploy with appellant again
4. trial counsel is at liberty to strike hard, but not foul, blows; as a result, it is error for trial counsel to make arguments that unduly inflame the passions or prejudices of the court members; the trial counsel also must not inject matters that are not relevant into argument; nor can the trial counsel ask court members to place themselves in the shoes of the victim or a near relative
5. generally, potential harm from improper comments can be cured through a proper curative instruction

Trial Stages: Sentence and Punishment: Instructions

1. generally, potential harm from improper comments can be cured through a proper curative instruction

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in determining whether an improper sentencing argument prejudiced appellant, an appellate court balances the severity of the improper argument, any measures by the military judge to cure the improper argument, and the evidence supporting the sentence to determine whether the trial counsel’s comments, taken as a whole, were so damaging that it cannot be confident that appellant was sentenced on the basis of the evidence alone
2. appellant was prejudiced by trial counsel’s improper sentencing argument that appellant could not be trusted work on helicopters in the future because of his conviction for making a false official statement during a rape investigation and for inviting court members to put themselves in an aircraft repaired by appellant, where the military judge provided no specific curative instruction in response to trial counsel’s sentencing argument, where the government did not present a significant case in aggravation, where the defense called three character witnesses, and where, although appellant did not receive the maximum sentence, it was not clear that his sentence was unaffected by the trial counsel’s improper argument

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where the defense counsel did not object to trial counsel’s sentencing argument at trial, appellant’s claim on appeal of improper argument is reviewed for plain error; to prevail, appellant must prove that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right

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

1. improper argument is a question of law that an appellate court reviews de novo
2. in determining whether an improper sentencing argument prejudiced appellant, an appellate court balances the severity of the improper argument, any measures by the military judge to cure the improper argument, and the evidence supporting the sentence to determine whether the trial counsel’s comments, taken as a whole, were so damaging that it cannot be confident that appellant was sentenced on the basis of the evidence alone