In United States v. Porter, No. 20110470 (A.Ct.Crim.App. Oct 31, 2013) (link to unpub. op.), the Army CCA considered the case of an appellant who was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of failure to obey a lawful general regulation by providing alcohol to an under-21 Private, and of sexual assault of the same Private by engaging in a sexual act with her while she was substantially incapable of declining participation. The appellant remained silent throughout the findings phase of the trial, but he made an unsworn statement during the sentencing phase.

Then, when the Government counsel gave his sentencing argument:

the trial counsel repeatedly emphasized not only that appellant’s unsworn statement was not subject to cross examination but that it did not include an express apology to Private CA or the Army. Separate and apart from those points of focus, the prosecutor commented three different times that appellant had not denied committing the offenses of which he had been convicted during his unsworn statement:

[1] The accused gave an unsworn statement and an unsworn statement can’t be cross-examined, but what was significant in that unsworn statement was not what he said, but what he didn’t say. Because what he didn’t say— well, what he didn’t say first, was that he didn’t do it. That you all got it wrong. Okay. He didn’t say that….

[2] Specific deterrence is a punishment, sort of a punishment philosophy that goes into what you will give the accused so that he doesn’t do it again. So that he is sure to have learned his lesson because of what he did to Private [CA] in that hotel room, that you all found him guilty of, that he didn’t say didn’t happen, and that he didn’t say he was sorry for.

[3] Specific deterrence because nowhere in that unsworn statement, that government couldn’t even cross-examine him on, there was no apology. No real recognition of what he did was wrong. Even at the same time, he didn’t deny it happened.

Slip op. at 2. The Army CCA finds “no lawful implication the trial counsel could have been making when arguing the double negative of what the appellant had not denied.” Id.

The court does not identify the counsel by name.

The court identified two ways the panel might have interpreted this argument, “neither of them appropriate.” Slip op. at 3.

First, the comments could be construed as a comment on appellant’s constitutional right to plead not guilty. The government’s argument suggested that by pleading not guilty, appellant had put the panel through four days of a contested trial but then failed to render the courtesy of consistency by not then maintaining a denial of wrongdoing in his unsworn statement. We believe such an argument could convey the intolerable unspoken message that it is proper to punish an accused who has put the prosecution to the test, not just for the crime itself, but also for so inconveniencing the Government.

Slip op. at 3 (citation and marks omitted). It is well-settled that an accused has an absolute right to plead not guilty, even if he believes that he actually is guilty, just because. The CCA continued:

Second, the argument could have been an improper bolstering of the panel’s verdict by the trial counsel’s condemnation of the appellant for not at least trying to relitigate the findings or impeach the verdict. Although an accused is provided a wide berth in the content of his unsworn statement, there are certain limits in what matters he may raise before the sentencing authority. Specifically, the Court of Appeals for the Armed Forces has recognized that an accused is generally prohibited from impeaching the findings of the factfinder. Government counsel’s multiple comments about appellant’s failure to deny seem to have implied the panel should garner confidence in their findings of guilty because, after all, the accused himself did not deny the behavior of which he had just been convicted. At a minimum, these comments amounted to an indictment of appellant for failing to do something that he was not allowed to do—impeach the panel’s verdict.

Slip op. at 3 (citations omitted). The CCA concludes that the “Government counsel’s comments on appellant’s failure to impeach the panel’s verdict were not only improper, they were highly prejudicial,” slip op. at 3, and orders a rehearing on the sentence.

Worth noting, the Defense did not object to this improper argument. Under R.C.M. 1001(g), “Failure to object to improper argument before the military judge begins to instruct the members on sentencing shall constitute waiver of the objection” (emphasis added) (see R.C.M. 919(c) for the identical rule for argument on the findings). Waiver is an intentional relinquishment of a known right and precludes relief on appeal (the alternatives are that an error is preserved by objection and reviewed de novo, or forfeited by lack of objection and reviewed for plain error). But CAAF has repeatedly refused to limit its review of improper argument to this constraint, including last term in United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013) (opinion) (CAAFlog case page).

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