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.