CAAF will hear oral argument in United States v. Halpin, No. 12-0418/AF, on Wednesday, October 24, 2012, at 9:30am. The issues before the court address whether the trial counsel’s argument on sentencing was improper and amounted to prosecutorial misconduct and, if so, whether the military judge erred by failing to stop the argument and issue a curative instruction, or whether the trial defense counsel was ineffective for failing to object. The Air Force CCA issued its opinion in February, finding that the trial counsel’s argument was not improper because it was “based on a fair reading of the record.” The CCA also found that, “[c]onsistent with his duty of zealous advocacy, trial counsel in the present case argued the facts and the reasonable inferences from those facts.” Fifty days later, CAAF granted review of the following issues:

I. Whether trial counsel’s improper sentencing argument amounted to prosecutorial misconduct.
II. Whether the military judge prejudicially erred when he failed to stop trial counsel’s improper sentencing argument or issue a curative instruction.
III. Whether trial defense counsel rendered ineffective assistance when he failed to object to trial counsel’s improper sentencing argument.

The Appellant was convicted by a special court-martial, pursuant to his pleas in accordance with a pretrial agreement, of failing to obey a no-contact order on divers occasions, wrongfully using Adderall on divers occasions, adultery, and reckless endangerment (by wrongfully and wantonly taking his wife home rather than seeking medical attention after witnessing her attempt suicide by consuming Lorazepam tablets), in violation of Articles 92, 112a, and 134. He was sentenced by a panel of officer members to a bad-conduct discharge, confinement for 10 months, and a reprimand, and the convening authority approved the sentence as adjudged (the PTA capped the sentence at the special court-martial maximum).

The Appellant complains that the trial counsel’s sentencing argument was improper because of “his ‘theme,’ which was unsupported by the facts. . . . [the theme was that] Appellant wanted his wife dead and attempted to hasten her death by hiding her in her home and covering up his involvement [in her suicide attempt]. His supposed motive was to collect an insurance payout, stop the arguments with her, and stop their impending divorce.” Appellant’s Br. at 7-8. The brief makes a fact-specific claim that the trial counsel’s argument was based on unreasonable inferences, that it was deliberately inflammatory, that it exaggerated the Appellant’s culpability, and that it included facts not in evidence.

Unfortunately for the Appellant, the trial counsel’s argument wasn’t so blatantly improper as to attract the attention of either his defense counsel or the trial judge, and there was no objection at trial. The AFCCA didn’t find fault with this, but the Appellant argues to CAAF that “[t]he impropriety of trial counsel’s remarks was plain.” Appellant’s Br. at 13. But this argument is relatively short, and the brief turns quickly to the question of prejudice, employing the test first announced in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), and most recently employed by CAAF in United States v. Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007):

We look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial…. We believe the best approach involves a balancing of three 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 [/sentence].

Erickson, 65 M.J. at 224 (citing Fletcher, 62 M.J. at 184). Fletcher was a contested members court-martial that CAAF set-aside due to improper argument on findings (the trial defense counsel objected to some of this argument). Erickson was a mixed-pleas judge-alone court-martial that was affirmed despite a finding of improper sentencing argument (no objection at trial). But the factual and procedural history of this case are distinct from Fletcher and Erickson, and the three-factor balancing test doesn’t seem like a good fit.

Still, on the first factor the Appellant argues that the trial counsel’s sentencing argument was “severe” prosecutorial misconduct: “fabrication of an attempted murder for profit, which was as inflammatory as it was factually baseless, is a severe form of misconduct.” Appellant’s Br. at 16. But this is a fact-specific, circumstantial argument. On the second factor, there were no curative measures, but that’s primarily because there was no objection. Finally, on the last factor the Appellant argues that “[w]ithout the improper comments, trial counsel had only a weak sentencing case.” Appellant’s Br. at 17. But the Appellant received only ten months confinement in a case where the maximum was 7.5 years, and where the circumstances of the offenses were objectively aggravating. Assuming that the trial counsel’s argument was as outrageous as the Appellant claims, it seems to have had relatively little effect on the members’ determination of a sentence.

The Government does not address this test in its brief, instead focusing its efforts on explaining why the trial counsel’s argument was not improper in the first place. “In this case, trial counsel reiterated facts in evidence and argued reasonable inferences why Appellant acted the way he did and then reminded the members they will never know why he committed these crimes.” Gov’t Br. at 5. “Indeed, several of Appellant’s complaints with regard to trial counsel’s sentencing argument are simply a continued effort to paint a different picture of himself than that clearly reflected in the record.” Gov’t Br. at 10. “Appellant takes selective words in isolation and then hypothesizes what they ‘seem’ to indicate or assigns a ‘de facto’ meaning that is simply not present in the argument, all in an effort to conjure up error where none exists.” Gov’t Br. at 14. The Government’s brief reminds the court that “[i]t is well settled that when reviewing an argument, the focus must be contextual.” Gov’t Br. at 14. Indeed, the question of context seems to be precisely the issue in this case.

The Appellant’s arguments on the second and third issues are simpler. His brief argues that “a military judge has a duty to stop improper arguments and take appropriate curative measures including providing cautionary instructions,” and that “[b]y not stopping the improper argument or providing the members the instructions to guide their sentence deliberation, the military judge consigned Appellant to be sentenced by an inflamed and misled panel of members.” Appellant’s Br. at 20-21. Additionally, he argues that the trial defense counsel was ineffective because the “Appellant received no benefit from [his failure to object or seek a curative instruction], nor is there any reasonable explanation for these inactions.” Appellant’s Br. at 23.

The Government’s response to these arguments is essentially the same as its response to the underlying question of whether the trial counsel’s argument was improper: “Appellant has not provided the Court with anything in the record that required the military judge to sua sponte instruct the members.” (Gov’t Br. at 17-18) and “[a]s a last ditch effort to escape responsibility for his crimes and his decision to plead guilty under the protection of his pretrial agreement, appellant launches an absolutely meritless attack upon his trial defense counsel” (Gov’t Br. at 21). But then the Government – perhaps in an effort to highlight the importance of context in this case – goes further:

In this case, the evidence was so aggravating that even assuming trial defense counsel’s failure to object was error, there was no prejudice to Appellant. In addition to the facts outlined above, Appellant’s wife testified that when Appellant tried to commit suicide on two occasions, she had been there to support him. She described how she was worried for his safety and welfare and stood by him. She had also arranged for his mother to travel to Davis Monthan Air Force Base to support him. When asked if Appellant ever visited her in the hospital, she said she “felt abandoned.” Rather, by Appellant’s own admission, while his wife was in the hospital, he had sex with another Airman on numerous occasions. The egregious facts alone in this case more than justify Appellant’s sentence.

Gov’t Br. at 22 (citations to record omitted). The contrast between the positions of the Government and the Appellant in this case is stark. Moreover, the Appellant has a steep hill to climb in order to win relief from CAAF, as he must convince the court to find error where the CCA, the trial judge, and the trial defense counsel saw none; and further convince the court that but for this error, the Appellant would have received a less-severe sentence. These factors would make this an unlikely case for the court to grant review, but grant review it did. Hopefully the reason why will be clearer after next week’s oral argument.

Case Links:
ACCA opinion
Blog post: Interesting CAAF grant
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

4 Responses to “Argument Preview: United States v. Halpin, No. 12-0418/AF”

  1. Dwight Sullivan says:

    “But the Appellant received only ten months confinement in a case where the maximum was 7.5 years . . . .”  Since this case was at a special, the max confinement was 12 months, not 7.5 years.  Additionally, the members gave Appellant the exact sentence that the TC asked for, plus a reprimand.

    “But the factual and procedural history of this case are distinct from Fletcher and Erickson, and the three-factor balancing test doesn’t seem like a good fit.”  CAAF applied the same test in a plain error analysis for a TC’s sentencing argument in United States v. Marsh, 70 M.J. 101, 107 (C.A.A.F. 2011).  In Marsh, CAAF also reversed the sentence even though the dc, the MJ, and the CCA didn’t note any error in the TC’s argument.

  2. Phil Cave says:

    “Having successfully negotiated a pretrial agreement that limited the charged offenses’ combined maximum confinement of 7.5 years to the 12 month maximum of a special court-martial, trial defense counsel elected not to object to the Government’s sentencing argument but instead chose to counter the  Government’s argument with a more sympathetic portrayal of the appellant – a tactic that resulted in adjudged confinement of even less than that authorized by the pretrial agreement.”

    1.  With 12 months his MRD would be at 10 months.
    2.  With 10 months his MRD would be about 7.5 months.
    3.  The fact the defense chose a “more sympathetic portrayal” is irrelevant.  Any DC would do that regardless of the TC argument.  A defense “tactic” doesn’t cancel out a TC error in this situation, it may in others.
    4.  When did getting a favorable PTA become a defense to error, in this situation.  Again, this might be a defense in some other situations.
    5.  Sentence adjudged 8 April 2010.  So, possibility of setting aside the BCD, or money back?

  3. Zachary Spilman says:

    I missed Marsh in my admittedly light research for this post. But in Marsh, the CAAF majority (3 judges/) found that the “trial counsel’s invitation to the court members to imagine themselves as potential future victims [of the accused] only served to inflame a fear as to what might happen if the panel did not adjudge a discharge.” Marsh, 70 M.J. at 107. Putting the members into the shoes of the victim is objectively pretty bad. The facts of this case are more contextual.

    Also, I agree that it matters that the Appellant received 10 months of the 12 month special court-martial maximum, despite the potential maximum for the offenses being 7.5 years. But it also matters that the circumstances of the Appellant’s crimes are objectively aggravating. Moreover, the trial counsel advanced a theory of the case that isn’t shared by the Defense, but there wasn’t a “facts not in evidence” objection, and there are (at lease) two sides to every case… 

    However, to Phil: Getting a favorable PTA shouldn’t be a defense to error in this situation. I’m also no fan of characterizing the PTA as “authorizing” a term of confinement. The PTA doesn’t authorize, it protects.

  4. RY says:

    I remember seeing this case at AFCCA and again looking at it when CAAF granted review and then again now that it’s up for argument but I’ve yet to see the real issue here.  First, TC’s argument doesn’t seem outrageous.  Second, that’s not an uncommon characterization by defense counsel anyway.  How often does DC argue the Gov’t is crazy?  Further, if the argument is actually inconsistent with the facts or any reasonable inferences therefrom, doesn’t that benefit an accused? IMHO, TC loses credibility and DC’s status rises.  Argument is not evidence so unless the words inflame or they analogize the accused to Satan, or they bring up prejudicial matters not before the members, it usually helps the defense.