CAAF will hear oral argument in the Air Force case of United States v. Frey, No. 14-0005/AF (CAAFlog case page), on Monday, February 24, 2014. The court will review the propriety and prejudicial effect of a Government sentencing argument with 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.
Appellant was convicted 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.
During the sentencing phase of the court-martial the Government presented only “a personal data sheet, a picture of [the child victim] with her mother, and Appellant’s enlisted performance reports.” App. Br. at 9. But then during the Government argument on sentence, the trial counsel stated:
What is the sentencing process trying to help here? Are we trying to focus more on helping a child molester get out of jail, a child molester who refuses to admit and apologize for his actual crimes he was found guilty of, or are we trying to fairly and justly show that the Air Force will not tolerate child molesters, that we want to protect young girls form the same fate and that we are trying to protect and comfort [RK] for everything that he has put her through?
Gov’t Br. at 3-4. The Defense did not object to this argument by the prosecution, and during the Defense argument the defense counsel “emphasize[d] [Appellant’s] low recidivism risk as a theme throughout his sentencing argument, arguing that the lack of pretrial confinement indicated a lack of recidivism risk and augured in favor of limited confinement: ‘And you do have to weigh, okay, if he’s been out there for 18 months and nothing like this has occurred again, is a lengthy prison sentence of 10 years really appropriate?'” Gov’t Br. at 4 N.1. The Government was permitted a rebuttal sentencing argument, and the trial counsel pounced:
Now, the Defense Counsel said, ‘there’s no evidence before you that he’s ever done anything like this before.’ And there is no evidence before you. But think what we know, common sense, ways of the world about child molesters.
Gov’t Br. at 3. That’s when the Defense objected. The trial counsel responded, “I’m just arguing the ways of the world, Your Honor.” App. Br. at 3. And the military judge overruled the Defense objection, permitted the trial counsel’s argument, and later emphasized in his instructions to the panel that arguments by counsel are not evidence.
Predictably, the Air Force CCA 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.” United States v. Frey, No. 37759, slip op. at 2 (A.F.Ct.Crim.App. Jul. 3, 2013) (link to unpub. op.). But the court found no prejudice by concluding that the improper argument was just a brief part of the whole 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.” Id., slip op. at 6. CAAF then granted review.
Appellant’s argument is straightforward:
Trial counsel inflamed the passions of the panel in the worst way possible – arguing that Appellant was a recidivist and only lengthy confinement will protect other children from Appellant, all after admitting there was no evidence to support such an argument.
App. Br. at 4.
The facts certainly indicate that the trial counsel based the argument about recidivism, and the generalization about child molesters (accurate or not), not on any evidence that was introduced but instead on a direct and improper appeal to the members to ignore the lack of evidence and base their sentencing decision on their own internalized fears and imaginations. But what the facts indicate, the Government’s brief practically embraces:
Appellant seizes upon the military judge’s and trial counsel’s use of the time honored admonition that members should utilize their “common sense and knowledge of ways of the world” in evaluating evidence as a hallmark of impropriety (App. Br. at 7-8). It is anything but.
Gov’t Br. at 19. When I noted CAAF’s grant in this case in a post last November, I was curious about how the parties would approach this issue in the context of the common instruction to members that they are to use their common sense and their knowledge of human nature and the ways of the world when evaluating the evidence in a case. Like juries, court-martial panels are rightly reminded that their common sense belongs with them in the deliberation room. But common sense is used to evaluate legally competent evidence, not as a substitute for that evidence. The magic words “I’m just arguing the ways of the world, Your Honor,” can’t excuse the fact that there was no evidence about recidivism by “child molesters.” More than a page full of citations in the Government’s own brief – discussing application of common sense to evidence actually admitted during the trial – emphasizes this point. See Gov’t Br. at 19-20.
Despite such discussion, the Government doesn’t find some previously overlooked evidentiary basis for the argument (though it does argue, on page 12 of its brief, that the Defense argument opened the door for a Government comment about recidivism). Rather it goes so far as to disclaim any evidentiary basis, purpose, or effect:
Here the military judge instructed the members that arguments by counsel are not evidence. . .
Gov’t Br. at 20. And yet it’s the Government’s position that:
There was neither error nor prejudice in trial counsel’s stray reference that members utilize their “common sense and knowledge of the ways of the world” in evaluating Appellant’s rehabilitative potential in light of his serious child sex assault convictions.
Gov’t Br. at 7 (emphasis added). So while acknowledging that the trial counsel’s sentencing argument lacked an evidentiary basis, and disclaiming any evidentiary purpose of effect, the Government insists that there was no error in the first instance. Considering that the Government didn’t appeal the AFCCA’s finding of error, CAAF is likely to be unamused (if not outright hostile) to this position. See, for example, United States v. Erickson, 65 M.J. 221, 224 N.1 (C.A.A.F. 2007) (link to slip op.) (discussing the law of the case doctrine when neither party appeals the intermediate court’s finding of plain and obvious error in an improper sentencing argument).
Rather, CAAF will focus on whether the improper argument caused material prejudice to a substantial right of Appellant, and the burden of persuasion in that determination is somewhat under-analyzed in the parties briefs. Many military cases about improper argument by Government counsel involve situations where the Defense failed to object, and so the argument is tested for plain error (where Appellant has the burden to prove prejudice). But in this case there was a Defense objection, placing the burden on the Government to prove harmlessness. And that may be an unbearable burden, considering that the military judge overruled the objection, gave no contemporaneous limiting instruction, and then gave a rather weak instruction to the members at the end:
Court members, let me begin by reminding you of the instruction I gave you during findings which apply equally here, that when counsel make argument, that is not evidence . . . You are to rely on the evidence admitted in the court and your recollection of that evidence. . . . A few statements Trial Counsel made in particular that most sexual assaults occur by family or friends is not before you in evidence, again, put that in context of whatever knowledge of the ways of the world you have. But that specific assertion of fact is not evidence.
Gov’t Br. at 18 (omissions in original). This instruction doesn’t explain that common sense is not a substitute for evidence, and actually goes in the opposite direction. By informing the panel that the Government’s argument involved things “not before you in evidence,” while simultaneously inviting the panel to put that argument “in context of whatever knowledge of the ways of the world you have,” the judge practically pushed the horse through the barn door opened by the trial counsel.
CAAF’s short opinion reversing the conviction in United States v. Riveranieves, 54 M.J. 460 (C.A.A.F. 2001) (link to slip op.), is instructive. In Riveranieves, the defense objected to the trial counsel’s misstatement of evidence, but the judge overruled the objection. CAAF found prejudice in the circumstances and the fact that “there was no immediate curative instruction given by the trial judge as to the prosecutor’s erroneous argument, nor a timely one specifically repudiating his asserted view of the evidence in this case.” Id. at 462 (citation to record omitted). So too in this case.
The CCA relied on the military judge’s instruction as a basis for its finding of harmlessness, and so does the Government in its brief. See Gov’t Br. at 18. A finding of deficiency in the timing or content of this instruction will likely lead to a finding of prejudice and a new sentencing hearing for Appellant. Whether CAAF is leaning in that direction may well become clear during the oral argument next week.
But another thing to look for is whether CAAF might go beyond the Defense objection at trial and also consider the trial counsel’s initial sentencing argument that referred to Appellant as “a child molester who refuses to admit and apologize for his actual crimes he was found guilty of.” Gov’t Br. at 3. The CCA’s decision discussed the test for review of such argument and some of the facts at issue:
An accused’s refusal to admit guilt after being found guilty may be an appropriate factor for the sentencing authority’s consideration of his rehabilitation potential, but only if a proper foundation has been laid. United States v. Paxton, 64 M.J. 484, 487 (C.A.A.F. 2007) (citation omitted). The predicate foundation can be met if the accused has made an unsworn statement and “has either expressed no remorse or his expression of remorse can be arguably construed as being shallow, artificial, or contrived.” Id. (quotation marks and citation omitted). Whether or not the comments are fair must be resolved when viewed within the context of the entire court-martial. United States v. Gilley, 56 M.J. 113, 121 (C.A.A.F. 2001).
In his unsworn statement, the appellant told the panel he was disappointed in the outcome of the trial but respected their decision. He then apologized to RK and her family and stated, “It was never my intention for any of this to ever happen at all.” In his sentencing argument, the trial counsel stated, “What does that say for how he will act in the future if 18 months . . . later he still can’t admit to it?”
United States v. Frey, No. 37759, slip op. at 5. But the CCA’s opinion doesn’t make a clear finding about whether there was an adequate foundation for the trial counsel’s argument or whether it was plain and obvious error.
CAAF’s grant of review is limited to the question of prejudice, and the court might constrain its discussion during next week’s argument to that issue. But the shadowy existence of a second error only steepens the hill that the Government must climb if it hopes to avoid a remand for a sentence rehearing.
• AFCCA opinion
• Blog post: CAAF to consider an Air Force prosecution sentencing argument
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview