CAAF decided the Air Force case of United States v. Frey, No. 14-0005/AF, 73 M.J. 245 (CAAFlog case page) (link to slip op.) on May 19, 2014. The court unanimously finds error in the trial counsel’s sentencing argument to the members to “think what we know, common sense, ways of the world, about child molesters.” Slip op. at 10. But the court splits 4-1 to find the error harmless, affirming the sentence and the decision of the Air Force CCA.

Chief Judge Baker writes for the majority. He is joined by all but Judge Ohlson, who dissents. Judge Ohlson agrees with the majority’s finding of error but concludes that “the toxic nature of the trial counsel’s comments, coupled with the deleterious effect of the military judge’s instructions, poisoned the sentencing hearing beyond redemption.” Diss. op. at 1.

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.

At sentencing, trial counsel requested that members impose a sentence of ten years of confinement, dishonorable discharge, forfeiture of all pay and allowances, and reduction to E-1. Defense counsel asked that members impose a sentence of less than ten years, but did not request a specific number, simply asserting that: “The defense would suggest to you that a shorter prison sentence is more appropriate in this instance.”

During his sentencing argument, on rebuttal, trial counsel stated: “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.” Defense counsel objected to this statement and trial counsel asserted that “I’m just arguing ways of the world.” The military judge overruled the objection. In instructing the panel prior to sentencing deliberation, the military judge reminded the members that argument was not evidence and that the accused was to be sentenced only for the crimes for which he had been found guilty. However, he also told them it was appropriate for them to apply their “commonsense [sic] and knowledge of the ways of the world whether or not in your particular case that involves any implication suggested by counsel.” The military judge instructed the members that the maximum period of confinement was life without parole.

Slip op. at 5-6. The Air Force CCA determined that the trial counsel’s sentencing 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 from the facts 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 of a single 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.

Chief Judge Baker begins by explaining that:

We agree with the CCA’s finding that the trial counsel’s sentencing argument was improper and see no reason to make a separate determination on this matter. By his own admission trial counsel’s statements were not derived from the evidence presented at trial. Moreover, in lieu of evidence, trial counsel appealed to members to apply their knowledge of the “ways of the world” to sentence Appellant based on a risk of recidivism through serial molestation.

Slip op. at 8. However, he explains that “prosecutorial misconduct does not automatically require” relief, and that it is tested by the three factors identified in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), and extended to sentencing argument in United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (CAAFlog case page). Slip op. at 9. These factors are:

(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.

Slip op. at 9. Applying these factors to this case, Chief Judge Baker first notes that:

Where trial counsel in this case overstepped the bounds of proper argument was in requesting that members draw upon information not in evidence to make a specific conclusion about Appellant: that he was a serial child molester who had offended before and in theory would offend again. “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.” Though this comment comprises three sentences in eight pages of sentencing argument, one is hard pressed to imagine many statements more damaging than the implication that someone who has been convicted of molesting a single child will go on to molest many more. Trial counsel’s insinuation that Appellant was necessarily guilty of additional offenses and would be a serial recidivist if not confined was both unsubstantiated and severe.

Slip op. at 9-10 (emphasis added). Next, he notes that:

The CCA found that the military judge’s curative instructions remedied the impact of trial counsel’s improper comment. We disagree. If anything, he made things worse.

Slip op. at 10. Expanding on this point, Chief Judge Baker explains that there are two problems with urging the members to reply upon their knowledge of the ways of the world in this context. The first problem is that members may not simply rely on “their personal knowledge of the ‘ways of the world’ to determine an appropriate sentence” instead of relying on actual evidence presented by the parties. Slip op. at 11. The second problem is that “recidivism is not a matter resolved through appeal to common sense or a member’s knowledge of ‘the ways of the world.'” Slip op. at 12. Notably, Chief Judge Baker explains that:

Though language encouraging members to rely upon their knowledge of the “ways of the world” is present in the Military Judges’ Benchbook, e.g., ch. 2, § V, para. 2-5-12, we note that it was stricken from the 1984 version of the MCM and is not part of the current MCM. Compare MCM ch. XIII, para. 74.a. (1969 rev. ed.), with MCM pt. II, ch. IX, at II-134 (1984 ed.).

Slip op. at 14. Perhaps a change to the Benchbook is overdue.

However, despite finding that the trial counsel’s argument “was both unsubstantiated and severe” (slip op. at 10), and that the military judge only “made things worse” (slip op. at 10), the majority finds no evidence of prejudice. Chief Judge Baker explains:

Nothing Appellant presented in mitigation — letters from his pastor, his fiancée, and other family members testifying to his good character and the stress he had been under due to the recent death of his father, and a brief unsworn statement in which he did not admit his guilt — was sufficient to mitigate the impact of then eleven-year-old RK’s tearful testimony or trial counsel’s admission of the actual note she wrote to her father the morning after the assault.

Most importantly, given that members adjudged an even lighter sentence than the Government requested and settled upon the period of confinement Appellant asked for — something less than ten years — we find no evidence of prejudice. We therefore are confident that Appellant was sentenced based on the evidence rather than improper argument presented. Thus, trial counsel’s argument, though improper, did not “materially prejudice[] the substantial rights of the accused.”

Slip op. at 16-17. And so the majority affirms the sentence and the decision of the CCA.

But Judge Ohlson dissents, with a strongly-worded opinion that nevertheless “readily concede[s] several important points” (diss. op. at 2), including the existence of “a considerable body of academic and scientific literature which indicates that the recidivism rate of certain categories of child molesters is woefully high” (diss. op. at 2), the ability of a trial counsel “introduce evidence of an accused’s recidivism risk at a sentencing hearing” (diss. op. at 3), and that “generally speaking, a sentence of eight years of confinement for someone who has been convicted of child molestation is not, on its face, unduly harsh” (diss. op. at 3). But “none of these points ameliorates or justifies the trial counsel’s argument during the sentencing hearing in this case.” Diss. op. at 2.

His dissent provides this context:

Specifically, during the trial counsel’s rebuttal argument the following exchange occurred:

ATC: 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.

DC: Your Honor, I’ll just object again. It’s improper argument.

MJ: Trial Counsel[?]

ATC: I’m just arguing ways of the world, Your Honor.

DC: Your Honor, this is not ways of the world.

MJ: Overruled. Continue.

And so, we are presented with a situation where the trial counsel blatantly argued to the panel members — who would soon be deliberating on the appropriate sentence to impose on Appellant — that although there was no evidence that Appellant had molested any children before, their knowledge of the “ways of the world” could allow them to conclude that he actually had done so. In my view, the impropriety of this argument is nothing short of breathtaking.

Diss. op. at 5 (emphasis added). Considering that before Judge Ohlson was confirmed to CAAF last year, he was the Chief of the Professional Misconduct Review Unit in the Department of Justice, for him to call a trial counsel’s argument “nothing short of breathtaking” is really saying something.

Judge Ohlson also has some strong words for the military judge:

Needless to say, the military judge’s failure to sustain the defense counsel’s immediate and well-founded objection to the trial counsel’s argument did not ameliorate the problem one whit. In fact, because the back-and-forth on this issue occurred right in front of the panel members, the military judge’s ruling could be construed as exacerbating the harm to Appellant. But worse, when the military judge gave his sentencing instructions mere moments later, the military judge actually compounded the problem — as conceded by the majority. The military judge correctly noted to the panel members that the Government’s argument included “[a] few statements . . . not before you in evidence,” but instead of solely instructing the panel members to ignore those arguments, the military judge instructed the panel members that they could place those arguments “in context of whatever knowledge of the ways of the world you have.” Thus, by giving this instruction, the military judge could be seen as endorsing the patently improper and grossly inflammatory argument made by the trial counsel.

Diss. op. at 5-6 (emphases added).

But Judge Ohlson is still in good company with the majority as he strikes these hard blows. It’s on the question of prejudice where his analysis turns away from the rest of the court, as he “believe[s] the proper approach in analyzing the issue before us is to place less emphasis on the result of the sentencing hearing and to place more emphasis on the process of the sentencing hearing.” Diss. op. at 8-9 (emphases in original). Accordingly, Judge Ohlson would order a sentence rehearing.

In my argument preview in this case I noted that the Government’s brief didn’t even concede the impropriety of the trial counsel’s argument. Considering that CAAF affirmed the sentence despite that majority’s finding that the argument “was improper” (slip op. at 8), “was both unsubstantiated and severe” (slip op. at 10), and that “if anything, [the military judge] made things worse” (slip op. at 10), it’s hard not to see CAAF’s decision as anything but an enormous and undeserved windfall for the Government. Particularly as the majority’s focus on results over process (as articulated by Judge Ohlson’s dissent) really only rewards the Government’s trial-stage intemperance and appellate-stage obstinance.

If there’s a silver lining to be found in the majority’s decision, it’s likely to turn up in the abolition of the perilous instruction to members inviting them to use their understanding of the “ways of the world” when making findings or determining a sentence. As the majority notes:

One person’s perception of the ways of the world might vary dramatically from another’s, based on education, experience, and personal bias. The phrase “common sense” is sufficient, and more accurate, to convey the sort of personal knowledge members can rely upon when weighing evidence and formulating their decisions.

Slip op. at 14.

Case Links:
• 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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

44 Responses to “Opinion Analysis: United States v. Frey, No. 14-0005/AF”

  1. stewie says:

    I don’t see how this is a windfall for the government. I certainly agree with Judge Ohlson that this is a ridiculous argument by government and an even more ridiculous ruling by the MJ of something a first-year law school student should know isn’t proper argument. I would hope the SJA/COJ there didn’t condone that argument. Having said that, prejudice is still part of the calculation, that isn’t new.
     
    I don’t know where the line is in this case. I can see the dissent’s implied argument that the conduct is so egregious that you give some relief just to send a message, and I find it appealing, yet that’s basically saying “ignore the lack of prejudice (because the sentence was less than what TC argued for and exactly what defense asked for).” The majority correctly points out that there doesn’t appear to be any prejudice here.
     
    I would consider a SOCO complaint (or whatever the equivalent the AF has).

  2. DCGoneGalt says:

    Concur with Stewie 100%.  While the argument was 1-L quality and the instruction from the judge was insufficient in pointing out the improper nature of the argument there is nothing in the record to indicate prejudice.  Therefore, the most that can be done is to perhaps embarass the counsel by name as a deterrent (but IMO that is somewhat juvenile as the SJA should have already made it a forceful lesson learned).  It is hard to believe this argument made it through a murder board so I have to assume the SJA/COJ was not aware.  Sadly, it is stories about arguments like this that make Captains who are good litigators forced to have to sit through lengthy murder boards for even the most mundane of cases.

  3. TC says:

    Rebuttal argument on sentencing?  I’ve never seen one.  Is that normal in USAF courts, or was there a particular reason it was allowed in this case? 

  4. k fischer says:

    Stewie, 
     
    SOCO complaints are a quick way to get black listed in the JAG Corps.  Plus, they really don’t send a message because does anyone really know where to find the results of such an investigation?  Oh, and let’s not forget when you start bringing up SOCO issues, the powers to be start accusing you of being cray-cray.  However, an opinion directing the Government to provide another sentencing hearing for the accused because of the patently improprer argument by trial counsel and the instruction by the military judge that made things worse would do two things:  (1)  on a macro level, it would send a message that such arguments will not be tolerated; and (2) would bring pain on the Government who replaced the actors in the appellant’s first trial to teach them a lesson not to do what their predecessors did.  
     
    Instead, the Government has learned that they may pretty much make any argument they want and get away with it.  The message I get is that, as a defense counsel, when the TC makes a closing argument that violates the Standards of Conduct, I will make a good objections, but the last thing I want to do is try to mitigate the improper argument on my closing.  And, I don’t know why the Defense asked for a “shorter period of confinement.”  Maybe I should argue, “If you really believe that my client is going to molest more kids, then give the Government what they ask for.  I don’t want him molesting my kids.” Certainly one hates asking for a panel to put their client in jail for any period of time, but what if Defense counsel said 6 months?  Would prejudice be evidenced by the sentence of 8 years, then?
     
    I just don’t see how the majority can with a straight face state that they are “confident that Appellant was sentenced on the basis of the evidence alone.”
     
    In fact, I like Judge Ohlson’s point:

     
    As just one example, one could as easily argue that because the Government received eighty percent of the confinement time that it requested, the Government is unable to meet its burden of showing that the improper argument did not tip the sentencing scales in its favor. Therefore, I once again would not place too much weight on the majority’s approach in deciding that the error in the instant case was harmless.
    Indeed, I believe the proper approach in analyzing the issue before us is to place less emphasis on the result of the sentencing hearing and to place more emphasis on the process[.]
     

    What a novel concept!  Placing less emphasis on the result and more emphasis on the process.  I wish our Members of Congress, SecDef, and CINC would do the same thing regarding to the ever changing UCMJ.
     
    If there doesn’t “appear” to be any prejudice the Frey, then what do you make of the two cases that Judge Ohlson cited in which similar convictions brought 1 year confinement and 11 months confinement, respectively?

  5. DCGoneGalt says:

    TC:  I have seen it a few times and seems to depend on the case and the judge.  I have also seen surrebuttal from the defense.  The only rule for rebuttal, and surrebuttal, seems to be keep it to less than 3 minutes.

  6. phil cave says:

    DCCG, yes have had it happen, but then the defense gets the last word – and yes only in AF courts.
    Agree with the dissent.  Using the process approach does not violate the harmless error rule, the dissent explains why.  It’s like the argument I have heard that we still have acquittals in sexual assault cases so there can’t be UCI.
    Kudos to the defense counsel for objecting.  You know from my posts and comments here and elsewhere that the issue of improper argument is a particular interest of mine – see it a lot at trial and in records I read.  I see there were no objections to some other arguments.  But there’s no rant to be said there.  We all make decisions at the time whether to object or let it go, no need to restate those reasons.  What I would say is that if the TC has gotten past one or two improper arguments without objection, then it is time to be more assertive with objections and possibly ask for a 39A.  As I watch TC go to the podium and set up it’s pretty obvious they have prepared and thought a lot about the argument.  You can see the detailed speech or outline.  So it is possible to consider that any improper argument was intentional not a mistake – maybe, maybe not.  (Although we know from Thompkins that intent is irrelevant it’s the impact on the fairness of the trial that rules).
    There is a teaching moment here.  That is the issue of arguing this important issue in front of the members.  I have seen that in a number of ROTs I have read over the last few years, either as to evidentiary objections or argument.
    I don’t like speaking objections or discussions in front of members.  If that happens I immediately ask for a 39A.  Yes, I know judges hate sending the members out so frequently.  I don’t disagree that proper efforts to keep the trial moving and the members comfortable are important.  But when it’s an important issue like this the judge ought to suck it up and have a 39A – ask for one.  Part of the reason is that the argument on the objection gives the prosecution a freebee at arguing the issue to the members and further risks introducing evidence not of record.  Haven’t read the record, but what if as part of the argument on the objection made in front of the members the TC cited to some statistics.  How do you cleanse that from the minds of the members.  That is facts not in evidence, but they’ve heard it.
    A further point raised by a comment above.  It is my understanding that many AF SJA’s micromanage their cases.  That includes “murder boards” and either directing or suggesting trial strategy and helping counsel prepare.  In my experience this is limited to AF cases.  If that is true, how can the SJA properly conduct the post-trial legal advice without having a conflict of interest.  In at least one case I have been able to disqualify an SJA for this reason.  To their credit the TC affirmed the micromanagement when I made the challenge.  I understand the SJA needs to be aware of what’s going on in the office and how the case is progressing, was that way myself as an SJA.  But there’s a line, and that’s why there’s a chief of justice to micromanage.

  7. Dew_Process says:

    @ DCGG – I hear where you’re coming from and agree with you.  The problem – at least in the AF – is that absent being in a deployed environment, being an SJA has somehow morphed into being a manager, not the Senior Partner in the OSJA. Now, I’m not saying this is always or even mostly the case, but it happens all too frequently in the AF, at least as I witnessed it in my 28 years, and so many times an SJA’s last (if any) contact with military justice would have been as a young 0-3. And I once had a SJA who had zero, nada prior experience in military justice – he’d never been certified because he’d never tried a case.  So, those folks aren’t going to catch the issue, much less add them to the “lessons learned” category.
     
    The pink elephant in the (court) room here is that – as Judge Ohlson suggests – that MJ’s are rarely held accountable for fundamental screw-ups.  And to that extent, I think k fisher’s nailed it.

  8. DCGoneGalt says:

    Mr. Cave and Dew_Process:  As to SJAs participating in murder boards and, in your words, micromanaging trial strategy via murder boards and other participation in trial prep and strategy I concur that is (I have to assume known) risk that big-AF has taken as to the ability of the SJA to participate in post-trial advice. 
     
    Based on the information available here there was no prejudice and the way to handle the trial counsel’s argument should not be by awarding relief but instead by holding the trial counsel responsible through a formal counseling (if ignorance) or an ethical complaint (if deliberate, which is near impossible to prove).  I would hope that military judges are also more willing to grant a curative instruction that makes it clear what the rules are and that, on these facts, trial counsel didn’t seem to understand them and went over the line.  IMHO, in this case granting relief with no showing of prejudice is undeserved.  In addition to not awarding relief, I would save the appellate name-shaming for deliberate acts (which would also be deserving of ethical inquiry) and for the most part I think the service courts and CAAF adhere to this principle.

  9. RKincaid3 (RK3PO) says:

    What a novel concept! Placing less emphasis on the result and more emphasis on the process. I wish our Members of Congress, SecDef, and CINC would do the same thing regarding to the ever changing UCMJ.

    SUSTAINED, K Fischer!!

  10. phil cave says:

    To who are you. . .  I tend to agree on the appellate name-shaming.  I don’t think it does much more than create temporary gossip for the community, and otherwise it gets shrugged off.

  11. stewie says:

    OK, but then remove the requirement that you have to have prejudice if this is going to be about process instead of result.  That rule is still there and you cannot say, yeah, there’s no evidence of prejudice, and we need that to find for the appellant, but we REALLY don’t like what the government/judge did here, and we want to send a message that you can’t ignore the rules so let’s ignore the rule and send this message.
     
    I mean we all agree it was ridiculous. It makes one wonder what the heck either the TC or MJ were thinking. This isn’t even an attempt at recidivism (he might do this again) but a blatant “we all know he’s done this before.”  I’m sensitive to the egregiousness of what was done here, but I think the majority is right that there is no prejudice in this case.  The panel appears to have ignored the TC’s argument, or at least it did not inspire them to give the sentence the TC wanted.  It’s been called out as wrong by two courts, I would think TC would think twice now because if it comes up again, they might just find prejudice next time.

  12. k fischer says:

    Speaking of Military Judges making mistakes, Phil, I found this over the transom in which you were quoted.  Why haven’t you posted this article about a Judge who was made Regional Defense Counsel after saying some things that would make me question whether I wanted to be represented by him as an accused?  Are the Marines attempting to atone for those who have been given the responsibilty for prosecuting sexual assault in the military being accused of sexual assault?

  13. DCGoneGalt says:

    k fischer:  From the article:

    In a remarkable career turnabout, Lt. Col. Robert Palmer has been named the Marine Corps’ regional defense counsel for the eastern region.

     
     
     
     

     
    Palmer’s previous service as a trial judge in the same region incited myriad appeals and a special fact-finding inquiry, following allegations about incendiary comments he made to young lawyers. Palmer allegedly called defendants “scumbags” and asserted that “the defendant is guilty; he wouldn’t be here at this stage in trial if he wasn’t guilty,” among other things.
    Read more here: http://www.bellinghamherald.com/2014/05/19/3651452/marine-corps-choice-for-key-defense.html#storylink=cpy

    Read more here: http://www.bellinghamherald.com/2014/05/19/3651452/marine-corps-choice-for-key-defense.html#storylink=cpy
    At that point I threw up in my mouth and stopped reading.

  14. k fischer says:

    What is more troubling is if it is true that he will be rating those defense counsel who spoke out against him.

     
    A Marine Corps officer whose bellicose prosecutorial rhetoric prompted defense complaints will now oversee defense attorneys, potentially including some who blew the whistle on him.

  15. stewie says:

    I would hope, that what will happen is that he will see (as his superiors will) the inherent issues there (vis-a-vis rating) and bend over backwards for those folks.
     
    Then again, if he does that, not fair to the folks they are competing against, so not really a good answer here is there?

  16. Zeke says:

    @stewie- the good answer is that a lawyer who thinks an accused is guilty by the fact that they’ve been charged should be disbarred, especially when they voice that drivel aloud, and while serving as a judicial officer no less.  Any legal organization that keeps such a lawyer is itself professionally challenged.

  17. k fischer says:

    Zeke, 
     
    I’m sure a lot of that was bravado by Judge Palmer, but if not, I’m not sure it calls for disbarrment.  In fact, I would imagine that there are a few JAG’s out there who believe just because someone is titled by CID, then they are guilty, too.
     
    However, I think the good response to Stewie’s question regarding a good answer is, don’t make him the friggin’ Regional Defense Counsel particularly for the same region in which he was the military freaking judge!!!!!  If you do, then, hell, while we’re at it, why don’t we make Sergeant MATTHEW B. PFRENGER II an EO NCO, BG Jeffrey Sinclair the Chief of SAPRO, Kyle S. Fischer the new Prosecution HQE for the Marine Corps, and ask Senators Gillibrand and McCaskill to draft a new Article of the UCMJ criminalizing false sexual assault allegations?  
     
     

  18. DCGoneGalt says:

    k fischer:  Agree k fischer, but even if it was bravado about believing all accused are guilty he does seem like General Amos’ dream candidate to lead the Marine defense attorneys.

  19. stewie says:

    Yes kf, but that ship has sailed.  He’s there so now he and his superiors have the leadership challenge of dealing with that novel situation of being in charge of rating and mentoring attorney officers who previously went after his qualifications in the due course of their duties.

  20. Paco says:

    I do believe this is a windfall for the government.  CAAF, and most CCAs, have been reluctant to find prejudice in improper arguments, despite their strong questions of government counsel during oral arguments.  Trial counsels, particularly those experience trial counsels, have yet to catch the lessons of “error” that CAAF has handed down in multiple cases, I believe because their was no meat behind their finding of “error.”  The Fosler problem worked itself out quickly, and now no SJA will allow a spec without all the required language because letting child molesters, rapists, and negligent homiciders off of their conviction carried a big stick for SJAs, CAs, and COJs to get it right.  If a court will finally enforce the argument rules, such arguments like “digenterent scum,” “he tried to kill his wife” and “he has done this before and will do this again”  will hopefully finally stop. 
    What we know is that with the trial counsels incredibly improper argument that was blessed by the military judge and the members sentenced Frey to eight years confinement.  We don’t know what they would have sentenced him too without such “nothing short of breathtaking” improper argument.  Every appellate court foudn this was wrong, however, the government got away with it, that sounds like a windfall. 

  21. stewie says:

    1. This isn’t a case of reluctant to find prejudice. There. Is. No. Prejudice. None. Nada. Bupkis. Zilch. Nada. They’d have to manufacture it out of whole-cloth.
     
    2. I struggle to see how ordering a sentence re-hearing in this singular case is going to be a clarion call to SJAs to stop all improper arguments. That’s not the role of an appellate court. It’s to decide the case in front of them, on the facts and the law. It’s why Fosler came out the way it did, it was the right result, regardless of the impact it might have on other future cases.

  22. Zeke says:

    The prejudice is a loss in confidence that the sentence was based purely on the evidence, and not, at least in-part, on flagrant prosecutorial misconduct.  The even greater prejudice is in permitting the military justice system to proceed with rampant prosecutorial misconduct by making it clear that there will be no consequences for outrageous arguments, either judicially or professionally.   By not imposing any consequences, CAAF is ensuring the continuation of a system without a moral compass, at least as regards argument by counsel.  An unscrupulous defense attorney might take note of the fact that there are no sanctions in this jurisdicition to be suffered for improper arguments.

  23. stewie says:

    They gave the sentence the defense asked for, and not the sentence the government asked for, and the sentence was well within the normal range for such an offense. So how was confidence lost?  What if the sentence had been one year? Would you still have the same argument? I suspect so. The solution for prosecutoral misconduct (and I’m not sure a really dumb argument by a baby TC qualifies to that level) is the SOCO process IMO.
     
    Second, you engage in such hyperbole. The system is not “without a moral compass…in regard to arguments by counsel” because CAAF didn’t find prejudice (where there is no evidence of it) in this one case. If a TDS attorney made an improper argument, objected to by government, and allowed by the MJ, what exactly do you think would happen? The courts aren’t likely to do anything about it.

  24. phil cave says:

    Zeke, tempting but not a good idea unless you can clearly articulate a “fire with fire” argument for why your argument is permitted.
     
    I have done that in the past and lead off with “what the prosecutor just said is improper, (now let me give you my improper response).  I have done that with my trial notebook open at this page and quote.
     
    “Our adversary system permits fighting “fire with fire” to ensure a fair trial. This includes permitting a party to introduce otherwise inadmissible but nonetheless reliable evidence if a party “opens the door” wide for rebuttal.   United States v. Banks, 36 M.J. 150, 163 (C.M.A. 1992).
    Improper argument by one counsel may open door for otherwise improper response.  United States v. Sowell, 62 M.J. 150 (C.A.A.F. 2005) and see United States v. Espronceda, 36 M.J. 535 (A.F.C.M.R. 1992) (on findings); United States v. Stadler, 44 M.J. 566 (A.F.Ct.Crim.App. 1996) (on findings), [“Comment which is improper, standing alone, may become permissible when properly made in response to defense argument”], aff’d 47 M.J. 206 (C.A.A.F. 1997).
     
    Note it goes both ways – as it should.
     
     

  25. DCGoneGalt says:

    Zeke, Stewie and Mr. Cave:  Not to continue beating a dead horse but Stewie is right, there was no prejudice that would justify relief in this case.  If the goal is deterrence then the court could have name-shamed but the lesson should have already been learned and name-shaming should be reserved for deliberate misconduct that results in prejudice.  As for the “fight fire with fire” argument for making improper argument  that Zeke alluded to I think that making a conscious choice to break the rules in response to an act of ignorance by a young trial counsel (that is what the majority of these cases are) makes the response worse than the original act.  The defense should object, the judge should make it clear that the trial counsel is wrong (which was not done here) and then the defense can smugly point out that the trial counsel has no credibility on sentencing recommendation because they don’t even know the criteria the members are able to consider.  I hated going against the trial counsel who didn’t know the RCM and rules of evidence (I called it a weeklong game of “Mistrial Whack-a-Mole”) I could not support a blatant disregard for the rules as a response.

  26. k fischer says:

    “Mistrial whack-a-mole”  is an awesome term.  I think Charlie Gittens could have coined that term in US v. Bozicevich, in which he made 7 (?) motions for mistrial and has recently commented that the Government has not produced a record of trial for his review going on about 3 years now?

  27. DCGoneGalt says:

    k fischer:  I swear I would rather have an experienced trial counsel or senior trial counsel on a case.  Some of the special courts where the youngsters run around unsupervised leave left me sitting on the edge of my seat 24/7 because every question had the potential of being a “well, let’s stop now and re-do this in six months” moment.

  28. k fischer says:

    DCGG,
     
    You are agreeing with Stewie that there is no prejudice in Frey??????  You should change your moniker to “DCGoneSoft.”  (I don’t care who ya’are; that’s funny right thar’…..)

  29. DCGoneGalt says:

    kfischer:  The defense got their recommended sentence, I’m not sure how an appellate judge could find prejudice with that absent some sort of affidavit from a member who lets something slip about the effect of the trial counsel comments once the trial is complete.

  30. stewie says:

    kf you lose cool points for quoting Larry the Cable Guy. Not funny man, not funny.

  31. J says:

    Way back in my courtroom days, I held to the notion that you should always tell the members what you want them to do. Not “less than 10 years,” not “6-8 years,” but a concrete number that you wanted them to come back with. Frey’s counsel says “5”, and there’s an argument for prejudice. Not so when they ask for “less than 10” and get exactly that.

  32. DCGoneGalt says:

    Is Larry the Cable Guy some lame character on Archer? (haha)

  33. k fischer says:

    Stewie,
     
    The local 24/7 comedy is in Foxworthy country (Harris County Georgia), so I’ve heard that self-promotion phrase so many times, I kind of lost my mind and quoted it.  Also, I listened to Larry the Cable Guy on the radio back in ’93 in Tampa when he was on the Ron & Ron show as a guest contributor in the mornings.  That dude has come a long way.
     
    Okay, so if Judges Baker, Stucky, Erdmann, and Ryan, along with the brilliant legal minds of COL Christensen (on brief), Stewie, and now, DCGoneSoft, say there is no prejudice, then I don’t see how I have any credibility whatsoever and ring the bell.

  34. Zeke says:

    Prosecutorial misconduct exists whenever there is a deviation from the standards expected of professional prosecutors.  It is not dependant on the existence of prejudice to the accused.  This about sums up my thoughts on the matter:

    This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel’s alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, ‘Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of “disapproved” remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.’ Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court – recalling the bitter tear shed by the Walrus as he ate the oysters – breeds a deplorably cynical attitude towards the judiciary. I believe this Court must do more than wring its hands when a State . . . permits prosecutors to pervert the adversary process. I therefore dissent.

    Darden v Wainwright, 477 US 168, 206 (1986) (Blackmun, J., Brennan, J., Marshall, J., Stevens, J., dissenting) (internal quotations and citations omitted). 

  35. stewie says:

    I think you are probably right J, it would have given the Judges something to hang their hat on RE: prejudice.

  36. J says:

    Stewie: Lest we get carried away, no one should be taking classes in litigation from me. Just seems like a good example of helping the appellate courts help you.

  37. RKincaid3 (RK3PO) says:

    This may or may not surprise anyone here…but I am with Zeke.  Without harsh consequences, there will continue to be be gubmint misconduct.  And while Phil is correct that when the gubmint uses an improper argument, they open the door for the defense to respond in kind–that hardly seems a worthwhile, principled system worth either defending or justifying–the two-wrongs-make-a-right approach.  Legal, but sad.  Doesn’t say much about “justice” as a process.
     
    What happens if the defense fails to stoop the gubmint’s level and respond in kind?  How much longer till an appellate court–trying to save the outcome–determines that any prejudice was an issue of waiver and IAC since the gubmint misconduct opened the door and the defense failed to walk through it?  Will the courts argue that any resulting error is due proximately to the Defense failure rather than the gubmint’s oppressive argument?  That is pert near what the court said here–measuring the actual sentence by the defense’s requested sentence to determine the prejudice–lost has been the gubmint’s misconduct. 
     
    That kind of systme reminds me of my rugby playing days where during play, the only person penalized for an intentional foul was the retaliator–why?   Because the offender was wrong, but the retaliator was more wrong simply because he was supposed to be “big” and “manly” enough to take it and not contribute to or start a melee.  Meanwhile, the intentionally fouling player continued to misbehave due to the safe harbor practice that penalized not the offensive conduct, but the response to the offensive conduct.
     
    Sigh….but that we had a system where substantive PROCEDURAL justice was the primary concern–not subjective outcome based satsifaction.

  38. Phil Cave says:

    To be clear, I am not advocating that a FWF approach be used everytime, far from it.  FWF should be reserved for exceptional situations where there is likely a substantial impact on the fairness of the trial and your clients right to a fair trial (whether it be defense or gubmint).  I Don’t mind taking the high-road, but in trial it is not me going to jail.  Thus, my desire to take the high-road cannot overcome the legal, moral, and ethical requirement to represent the client’s interests not my own.
     
    Let me give you an example.  United States v. Savala, NMCCA 200800818 (N-M Ct. Crim. App. 28 January 2010)(unpub.) rev’d 70 M.J. 70 (C.A.A.F. 2011), is a case I did at trial.
     
    Prior to trial we asked for an expert to help explain the memory and conduct issues of someone who claims to be drunk or incapacitated.  Sound familiar.
     
    The government denied the request, but in accord with the RCM and law offered an adequate substitute.  This substitute had been approved as a defense expert in a case at the same court-house involving the same prosecutors, and ahd testified in that case a few weeks before Savala.  Upon investigation I accepted and we moved forward.
     
    The expert testifies for the defense.
     
    The first questions out of the prosecution challenge the experts qualifications and expertise to be testifying.  The expert continues testimony.
     
    After an Art. 39A, and on redirect the defense is allowed to draw out how the expert had been appointed, and specifically that it was the gubmit who asserted to us and the court that the expert was qualified and could testify about the matters he was now being challenged on.  The judge had declined to give a curative instruction.
     
    I think that’s fair FWF, especially in light of the other issues we had in the case.  I understand some may disagree, and welcome a discussion how a such a scenario could be dealt with differently.

  39. J says:

    Phil: As always, I find myself agreeing with stewie, why not file a SOCO or ethics complaint? I’m a huge government hack, and I would never pull that crap. I know that my state bar would have a problem with candor to the tribunal given those facts.

  40. stewie says:

    1. I don’t know how I feel about someone who says they are a “government hack” then saying they always agree with me.  Crying, a long look in a mirror, and self-mutilation come to mind fleetingly, but then I regain my composure. I suppose I should just be happy someone agrees with me on something!
     
    2. RK3, the words be careful what you wish for and unintended consequences come to mind when either side makes an argument for focusing on process over outcomes. T’aint all sunshine and puppies down that path for the defense I don’t think. One example off the top of my head.  Say there’s a time bar on appeals or new evidence.  Totally fair, trials need to have some point of finality.  Completely exonerating evidence comes after the end of the period.  Process says mighty fine to stick to the rules, outcome says, whoa, t’aint fair.  I’d think a good system balances and values both getting the right outcome and doing it the right way, not one exclusively over the other. I think requiring prejudice generally is fair, it is not over-valuing outcome over process.
     
    3. I have zero problem with a DC doing just about whatever they have to do to fight a situation where the government AND the MJ have abdicated following the rules and good sense.  Gotta be careful that you’ve truly identified that exceptional situation, but if you have, then serve your client. Phil, I am not even sure your example is improper, it’s pretty much demanded by what the government did.

  41. J says:

    When I think you make sense, it’s time for some serious reflection. Sorry.

  42. stewie says:

    Sigh.  There’s always that Whataburger franchise I’ve had my eye on.

  43. RKincaid3 (RK3PO) says:

    Let me be clear—while I am partial to the underdog (that ain’t the gubmint), I am advocating changes not because I think they will help the defense.  I am advocating changes that I believe would improve the system.
     
    @ Stewie:  I concur–“t’aint all sunshine and puppies”–but nothing is perfect–but things can be better–or at least we should shoot for better.
    @Phil: I Concur–taking the high road at trial is probably NOT in a client’s best legal interest and when one is the only one taking the high road–one soon finds themselves losing everything.  So, sometimes for the sake of the client–two wrongs does make a right.  But that doesn’t mean we can’t ask the question about what is better: the cure or the disease–when arguably the system should be designed so that no cure is needed since there is no disease.
     
    I know, I know.  I am dreaming again of a world that doesn’t exist.  Too much sci fi and too many comic books growing up.  That experience made me dumb enough to expect humanity to be better than it is–to find hope where there is only humanity.
     
    Sigh…
     

  44. Nathan A. White says:

     
    Judge Ohlson is right – this was a results-oriented outcome by the majority.  His dissent certainly leads to an inference that there’s almost a bit of naiveté on the part of the majority to assume confidence in a panel’s sentence once a finding of error is made.  I’m not saying erroneous argument always equals harm, but I think it’s a very high burden.  And cases like this, I don’t see how an appellate court could find argument improper and not harmless after finding the military’s judge’s instruction wasn’t curative.  If the instruction isn’t curative, absent a sentence that is nowhere close to the prosecution’s recommendation, how can the error be harmless?  Answer:  When the accused is a child molester.  Ergo, results-oriented decision.  Kudos to Judge Ohlson for focusing on the process.
     
     
     
    Panels, especially Air Force panels (USAF doesn’t do standing panels – our bases are too small to justify using them) where most members have never served on more than one court-martial – have no idea what a crime “is worth” in terms of sentence until the prosecution and defense give them the left and right lateral limits of a sentence. My experience as a prosecutor and trial defense counsel and interaction with panel members is that once the prosecution gives his/her sentence recommendation, most of the time, panel members peg the prosecution recommendation as their max sentence they’ll consider in deliberations.  They also assume there’s a little inflation as well.  On the flip side, if the defense gives a specific recommendation, that becomes the minimum appropriate sentence, and they also assume the defense is probably low-balling it.  This is why most defense counsel choose not to give a specific recommendation, especially on confinement, because if you do, you just bought your client at least that much time in jail and probably a little bit more.
     
     
     
    The majority’s finding of harmless error based on the defense counsel’s request for something less than 10 years is ridiculous.  Again, if the defense had given a specific number, that’s at least what the accused would’ve received.  This is Monday-morning quarterbacking, but 10 years was way too high for this case, so this might’ve been the case to argue for say, one year of jail, but I would’ve run it by the client first and gotten his permission (and maybe the defense did exactly this).  This could’ve been one of those cases where you argue that the panel consider a sentence “in months instead of years,” but this is all just food for thought for practitioners.  The defense did as good as they could in this case in both findings and sentencing.
     
     
     
    Random fun fact:  The majority kept referring to the assistant trial counsel with male pronouns.  The ATC was a female.  I’m not sure what to make of that.
     
     
     
    Takeaways for practitioners:  Gov’t, put on the evidence to support your argument.  Get an expert to talk about recidivism or don’t argue it at all.  It’s a question of whether the time/cost is worth the extra sentence.  For cases like this, I’d say it is worth it because I’m convinced the recidivism argument absolutely swayed the panel.  Defense, object to everything – especially when it’s a junior counsel!  Perhaps I’m reading between the lines, but I get the feeling had the defense objected to everything the majority highlighted, this would’ve swayed the majority in finding prejudice.  Finally, object to the “ways of the world” instruction at the onset of every case.