In United States v. Halpin, No. 12-0418/AF, 71 M.J. 477, 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.