In United States v. Halpin, No. 12-0418/AF, the Appellant was convicted of numerous offenses – including 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 accordance with his pleas, at a special court-martial. A panel of officer members gave him a near-maximum sentence of a bad-conduct discharge, confinement for 10 months, and a reprimand.

But post-trial, the Appellant complained (for the first time) about the Trial Counsel’s sentencing argument. He felt it was improper because of the “theme,” which he argued “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 AFCCA disagreed, finding the argument 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.” But CAAF granted review to determine: (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; and (III) Whether trial defense counsel rendered ineffective assistance when he failed to object to trial counsel’s improper sentencing argument.

Judge Stucky, writing for a 3-2 majority of CAAF, affirms the CCA. The beginning of his opinion gives the impression that the Appellant’s failure to object was dispositive: “In this case, our judgment does not depend on whether any of trial counsel’s sentencing arguments were, in fact, improper. Rather, we conclude that Appellant has not met his burden of establishing the prejudice prong of plain error analysis.” Slip op. at 7 (emphasis added). However, looking at his analysis it seems that even if there were an objection in this case, the result would be the same:

We look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial. In Fletcher, where the issue was the government’s findings argument, we explained that the best approach to the prejudice determination involves balancing 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. In applying the Fletcher factors in the context of an allegedly improper sentencing argument, we consider whether trial counsel’s comments, taken as a whole, were so damaging that we cannot be confident that [the appellant] was sentenced on the basis of the evidence alone. In this case, considering the cumulative impact of any allegedly improper arguments in the context of the trial as a whole, we find that the third Fletcher factor weighs so heavily in favor of the Government that we are confident that Appellant was sentenced on the basis of the evidence alone.

Slip op. at 8 (citations and marks omitted). Judge Stucky relies on two seminal prosecutorial misconduct cases: United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) and United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007). In Fletcher, “[d]uring the findings argument the trial counsel offered her personal views, made disparaging comments about Fletcher and his counsel[,] and drew parallels between Fletcher’s case and the legal problems of various entertainers and public religious figures.” 62 M.J. at 178. In Erickson, the trial counsel “compar[ed] Erickson to Hitler, Saddam Hussein, and Osama bin Laden, and describ[ed] him as a demon belonging in hell.” 65 M.J. 222. Both cases involved forfeited errors due to failure to object at trial (in-part in Fletcher; totally in Erickson). CAAF set-aside the findings in Fletcher, but affirmed in Erickson.

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We granted review to consider three questions surrounding trial counsel’s sentencing argument: (1) whether the argument constituted prosecutorial misconduct; (2) whether the military judge erred in failing to stop the argument and issue a curative instruction; and (3) whether the defense counsel rendered ineffective assistance of counsel by failing to object to the argument. We hold that Appellant has not met his burden of showing that he was prejudiced by trial counsel’s arguments. We therefore affirm the decision of the United States Air Force Court of Criminal Appeals.

United States v. Halpin.  A 3-2 decision with J. Erdmann and S.J. Effron dissenting.

Audio of the oral argument of United States v. Halpin, No. 12-0418/AF, on Wednesday, October 24, 2012, is posted on CAAF’s website at this link.

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.

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CAAF granted review of these issues today:

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.

United States v. Halpin, __ M.J. __, No. 12-0418/AF (C.A.A.F. May 22, 2012).  AFCCA’s unpublished decision in the case is available here.

CAAF’s rocket petition docket continues to blast on afterburners; AFCCA’s decision was issued on 1 February.