23 June 2007

Hitler, bin Laden, and Saddam

In United States v. Erickson, No. 06-0715/AF (C.A.A.F. 22 Jun. 2007), the Court was faced with a sentencing argument in which the trial counsel invoked the names of Hitler, Saddam Hussein, and Osama bin Laden. Trial Counsel was trying to set up a dichotomy between the evil that is clear, present, and obvious and evil that is hidden. His point was that hidden evil, such as the accused sexually molesting his two daughters and then ordering them not to tell anyone, is worse than open and notorious evil. Appellant did not object to this argument. The military judge sentenced the accused to life in prison with the opportunity for parole. The Air Force Court of Criminal Appeals reviewed for plain error. It held the error was plain and obvious, but did not prejudice the sentence.

On appeal at CAAF, the only question was whether the obvious error, as found by the AFCCA, was prejudicial. All five judges agreed there was no prejudice. Judge Stucky, joined by Judge Baker, concurred but criticized the majority’s rationale.

Judge Erdmann analyzed this case using the three-part test that he developed in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), to determine whether a prosecutor’s findings argument in a members trial was prejudicial. The test looked at the severity of counsel’s misconduct, the military judge’s curative measures (normally instructions to the members), and the weight of the evidence supporting the accused’s conviction. Judge Erdmann concluded that, while the second Fletcher factor “adds little to the analysis in a judge alone trial, there is no reason not to apply the first and third factors in that context.” The majority concluded that the weight of the evidence for a substantial sentence in this case -- including life in prison with the opportunity for parole -- persuasive. “We find that the weight of evidence clearly supports the Court of Criminal Appeals’ determination that Erickson would have received the same sentence irrespective of trial counsel’s improper comments.”

Judge Stucky correctly points out that it doesn’t make much sense to apply Fletcher, or even the first and third Fletcher factors, in a judge alone case. There is a presumption in law that the military judge understands and applies the law correctly. One would expect that to overcome the presumption an appellant would have to show something in the record to suggest that the judge either didn’t know the law or didn’t apply it correctly. But if you applied Judge Erdmann’s test, the presumption apparently may be overcome if the prosecutor’s misconduct is severe and the weight of the evidence is less than overwhelming. And if curative measures “add little to the analysis,” it suggests a truly absurd result: The military judge couldn’t cure the error by stating she wouldn’t consider the argument. I realize this is just a case of sloppy draftmanship, but you have to wonder why the majority didn’t fix their opinion when faced with the concurring opinion.

Perhaps too much pride of authorship?

It appears none of the judges was impressed with the appellant's argument that his sentence was greater than normal in a child sexual abuse case. Judge Erdmann eloquently explains why this was not the normal child sexual abuse case. He writes of the severe trauma and emotional scarring that the appellant inflicted on his entire family. Just read what the appellant did to his younger daughter:
Erickson abused the younger daughter starting when she was five and continuing until she was ten. He had sex with her as often as several times a day; had oral sex with her; attempted anal sex; fondled and kissed her; took showers and baths with her; penetrated her with a dildo; showed her pornographic videos; placed her in sexual situations with her brother and the family dog; took naked pictures of her; and had phone sex with her.


John O'Connor said...

Sometimes I just don't understand Trial Counsels. Given those facts concerning the accused's abuse of his daughter, in a judge-alone case, do you really have to say ANYTHING in argument to ensure that the MJ is going to do the right thing on sentence? The play there is to stay as far away from the line as humanly possible during argument. It's kind of like the other recent CAAF case where the TC argued that the accused's request for a lawyer was clear evidence of his guilt. When you get the windfall of having had the members learn that the accused lawyered up, you go out on a break and laugh like schoolgirls with the other TCs but say absolutely nothing about that fact in argument. You've already gotten the windfall and the mission from there on out is not to screw it up.

Sacramentum said...

Before my first trial, I was quite apprehensive about closing argument. My SJA told me to grab the Military Justice Reports digest and read through the sections on findings and sentencing arguments. I admit being a bit paranoid after seeing how many ways the trial counsel could get in trouble, but it gave me a better understanding than the basic JAG course had time to give.

John O'Connor said...

But I would think that you'd leave justice school with two lessons in mind: (1) if you're going to use the word Hitler in sentencing argument, take a step back and think about it; and (2) never comment on an accused's remaining silent or lawyering up.

I will say that I think the CAAF is way too willing to find error and prejudice in closing arguments from a read of a cold record. I was a TC with a guy who called everybody hombre, amigo, etc. He prosecuted a car thief (in absentia no less) and talked in closing argument about the accused and his "amigos" stealing the car. Unfortunately, the two other thieves had names that clearly identified them as Hispanic; while the accused's name didn't, he was in fact Hispanic. There was no objection at trial because, to anyone sitting there, the statement carried no ill intent or even a comment on race (unlike the famous "Latin lover" argument). On appeal, the CAAF reversed anyway saying that the unobjected to argument was obviously prejudicial.

The irony is that the accused came back from UA and got tossed in the brig. When I prosecuted another one of the co-conspirators, the Marine who had been convicted in absentia readily and voluntarily agreed to testify against his co-conspirator without any promise from me whatsoever. I did make a point of putting in a clemency letter for him (in which I noted his unequivocal acceptance of responsibility for the crime). Nonetheless, the CAAF (which would have had that letter in the ROT) decided the argument was so clearly out of bounds that the Marine ought to get a new trial.

Fitzcarraldo said...

Similarly, when I briefed at the Air Force ADC orientation last summer, I told the new trial defense counsel to read US v. Fletcher (improper sentencing argument), US v. Crosser (improper sentencing argument) and US v. Grover (improper sentencing evidence) to get a great idea of what all they should be objecting to.

Sacramentum said...

CAAF appears to be very sensitive about any argument in which there is any comment that might in any way be construed as racist -- --even if the so-called reasonable man might not see it. I view that as a good thing.

CAAF is probably overly sensitive about cases in which courtmembers decide an accused's fate. I'm not sure that is necessary as most courtmembers understand puffery when they hear it. Although this appellant was truly evil, I think the court members would have recognized the difference between Hitler and the accused.

Note that the CAAF judges never had to decide whether the argument was error -- that was done for them by the AFCCA.

In a judge alone trial, there is just no need to go to this length to try to get a severe sentence. The trial counsel could have just explained that this is the worst of the worst in child sexual abuse, the entire family has suffered deep scars from it, and state the sentence he wanted the judge to impose. If he wanted to talk about open and notorious evil and hidden evil, he should have left the analogies at home.