CAAF’s daily journal update for yesterday reflects this entry from last week:

No. 14-0005/AF.  U.S. v. Daniel A. FREY.  CCA 37759.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT ERRED IN FINDING TRIAL COUNSEL’S PRESENTENCING ARGUMENT WAS HARMLESS ERROR WHERE TRIAL COUNSEL INSINUATED THAT APPELLANT WILL COMMIT FUTURE ACTS OF CHILD MOLESTATION.

Briefs will be filed under Rule 25.

We didn’t discuss Frey when it was decided in July, but it’s an interesting case. The AFCCA’s unpublished opinion is available here, and includes discussion of Appellant’s other assertions of error, including IAC in plea negotiations, erroneous post-trial processing, and cruel and unusual punishment during approximately two months of post-trial confinement in a civilian facility while awaiting transfer to Fort Leavenworth.

Appellant was convicted in 2010, contrary to his pleas of not guilty by a general court-martial composed of officer members, of one specification of aggravated sexual contact and one specification of rape of a child who had not attained the age of 12 years, both in violation of Article 120 (2006). He was sentenced to reduction to E-1, confinement for 8 years, and a dishonorable discharge.

On December 31, 2008, Appellant and his finance got into a fight, leading to Appellant moving in with a friend and supervisor, a Master Sergeant (E-7) (Appellant was a Staff Sergeant (E-5)). The Master Sergeant hosted a New Year’s Eve party that Appellant attended. After the party, Appellant remained in the basement with the Master Sergeant’s two daughters, seven-year-old EK and ten-year-old RK. Appellant and RK eventually fell asleep on a pull-out couch, but RK awoke during the night “when she realized the appellant’s hand was on her stomach underneath her shirt. Frightened, she laid still on her back as his hand moved up her chest and fondled her breasts. He then slid his hand inside her pajama pants and underwear, rubbed her vagina, and digitally penetrated her vagina with his finger, causing her pain. Next, he fondled her breasts a second time before moving his hand back down her body to once again touch her vagina. RK then got up and went upstairs” where she left her father a note about the contact. United States v. Frey, No. 37759, slip op. at 2 (A.F.Ct.Crim.App. Jul. 3, 2013).

Appellant eventually made incriminating statements to civilian law enforcement agents, though he claimed that he might have thought the child was his fiance. At trial, the defense presented “a forensic psychiatrist who testified the appellant may have touched the child while suffering from a sleep disorder that allowed him to engage in directed physical activity while asleep,” but Appellant was convicted of touching RK’s breasts and genitals, and of raping her by digital penetration. Slip op. at 3.

Appellant gave an unsworn statement in sentencing in which he “told the panel he was disappointed in the outcome of the trial but respected their decision.” Slip op. at 5. He also apologized to RK and her family. But then in argument the Government counsel asserted: “What does that say for how he will act in the future if 18 months . . . later he still can’t admit to it?” Slip op. at 5 (omission in original).

The Defense did not object, but in argument the defense counsel said: “there’s absolutely no evidence before you that the appellant is a threat to little girls out there.” Slip op. at 5-6. The Government was permitted rebuttal and the Government counsel acknowledged the lack of evidence of recidivism but stated, “But think what we know, common sense, ways of the world about child molesters.” Slip op. at 6. Then the Defense objected, but the military judge overruled the objection. In surrebuttal, the defense counsel reiterated the lack of evidence on this point.

Immediately following argument, “the military judge reminded the panel that the arguments of counsel are not evidence and they should apply their common sense and knowledge of the ways of the world regarding any implication raised by the counsel in argument.” Slip op. at 6.

The AFCCA determined that the Government counsel’s argument was error, finding “that this argument went beyond the evidence of record and any reasonable inference that can be derived from it, including the appellant’s unsworn statement.” Slip op. at 6. But the court finds no prejudice based on its conclusions that the improper argument was just a brief part of the argument, that the improper argument was rebutted by the Defense, and that the improper argument was “further undermined by the curative instruction provided to the military judge.” Slip op. at 6.

It’ll be interesting to see how the briefs treat this issue. The allowance for application of “common sense and knowledge of the ways of the world” has got to be the most abused phrase in all of military justice. It’s the members duty to weigh the credibility of the witnesses and to determine the facts from the evidence, and that requires leveraging their common sense and human experiences. But that doesn’t mean the members can use their gut as a substitute for record evidence. In this case, where there was no evidence of recidivism, it’s hard to see the Government’s argument of “think what we know, common sense, ways of the world about child molesters” as anything but a direct appeal to the members to forget the lack of evidence and just go with their gut.

And even though just yesterday I mentioned CAAF’s decision last term in United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013) (opinion) (CAAFlog case page), I can’t help but mention it again in the context of this grant. Halpin, which was also an Air Force case and also involved a sentencing argument, was a close decision with a dissent authored by Judge Erdmann that emphasized the lack of evidence supporting the trial counsel’s argument. Reading the AFCCA’s opinion in Frye, and re-reading my opinion analysis in Halpin, I see a lot of potential similarities between these two cases. CAAF’s decision to grant could signal some discomfort within the court over how Haplin was ultimately decided.

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