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.
• 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