In United States v. Halpin, No. 12-0418/AF, 71 M.J. 477 (C.A.A.F. Feb. 13, 2014) (CAAFlog case page) (link to slip op.), 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.

Despite both Fletcher and Erickson involving failures to object, the court conducted a comprehensive balancing of all three factors in each case. However, in Halpin the third factor (“the weight of the evidence”) is decisive, and the other factors get only a brief mention. Additionally, Judge Stucky notes that “Appellant’s misconduct could have exposed him to seven years and six months of confinement” (slip op. at 9), a point I made in my argument preview (“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.”). But it was quickly pointed out that the maximum in this case wasn’t 7.5 years, it was the special court-martial jurisdictional maximum of one year. So what gives? Is Judge Stucky (and the majority) judging the sentence based on the maximum punishment authorized by the President, and not the jurisdictional maximum? Is he implying that the members should have known of the bigger number? He doesn’t say…

But Judge Erdmann’s dissenting opinion, joined by Senior Judge Effron, highlights this point:

The special court-martial referral and the pretrial agreement defined the sentencing universe and it should not now be the basis for a finding that Halpin was not prejudiced. The prejudice inquiry should instead focus on the effect the improper argument had on the sentence Halpin received within that sentencing universe.

Diss. op. at 10. Judge Erdmann’s dissent – which is as long as Judge Stucky’s majority opinion – highlights a number of issues with the majority’s approach:

As there is no evidence in the record to support trial counsel’s arguments, there can be no reasonable inference that Halpin tried to stage a scene to hide his involvement or that he intended for his to wife die so that he would benefit personally and financially. Trial counsel’s argument was improper and constituted error.

Diss. op. at 6. Counsel can argue “the evidence of the record, as well as all reasonable inferences fairly derived from such evidence.” Diss. op. at 2 (quoting United States v. Burton, 67 M.J. 150, 152 (C.A.A.F. 2009)). Judge Erdmann makes it clear that in this case, in his opinion, counsel went too far.

As this is an Air Force case, the military judge was on notice of United States v. Martinez, 30 M.J. 1194, 1197 n.* (A.F.C.M.R. 1990), which stated:

we know of no civilian authority for the proposition that a defendant can be found guilty of one crime yet punished for a second crime, or upon a different theory of criminality. Even if such practice might be permitted in civilian courts, we could not sanction it in a court-martial.

Just as in that case, once the military judge entered findings as to one theory of guilt in Halpin’s case, the prosecution was precluded from advancing a more serious theory during sentencing. Id. Trial counsel’s improper argument constituted plain and obvious error.

Diss. op. at 7. Martinez was cited in the Appellant’s brief and is an interesting case. It’s unfortunate that Judge Stucky didn’t get around to considering it.

The majority holds that the third Fletcher factor “weighs so heavily in favor of the Government” that discussion of the first two Fletcher factors is unnecessary. Halpin, __ M.J. at __ (8). However, the severity of the misconduct in this case and the fact that there were no measures to cure the misconduct cannot be ignored by this court and all three factors must be balanced.

Diss. op. at 8. Sounds familiar. And so Judge Erdmann finds:

In view of the improper argument, I cannot be confident that Halpin was sentenced on the basis of evidence alone. I would therefore find that Halpin was prejudiced by the improper argument made by trial counsel. I would reverse the decision of the CCA, set aside the sentence and remand the case for a new sentencing hearing.

What this case means for the law of improper argument is unclear. If there’s any red meat in Judge Stucky’s analysis, it’s bathed in a plain-error marinade. That’s a bad meal for both sides. I wondered during my preview why the court granted review of this case. I think in the end the majority had the same question.

Case Links:
ACCA opinion
Blog post: Interesting CAAF grant
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: U.S. v. Halpin Decided
Blog post: Opinion analysis

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