How can this happen

The Army Court of Criminal Appeals will hear oral argument on Wednesday, August 3, 2016, at 10 a.m., in United States v. Ahern, No. 20130822.  The court will consider the arguments of counsel on the following two issues.

I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.”

II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

How does this happen?

Can a trial counsel think this argument is even possible, let alone appropriate.  We’ll have to see because we don’t know when or how the Appellant was confronted by the witness(es).  If this was after the advice of rights this is clearly wrong.  There may be other circumstances, very narrow, where it might be appropriate to offer and then argue such actions of a suspect as consciousness of guilt.

Did not the defense counsel object?  No, because the issue is being raised as “plain error.”  That means the defense counsel did not object and therefore the issue is waived absent plain error.  The plain error doctrine is a limited exception to the waiver rule.  It would have been better for defense counsel to object to such statements.  I don’t think there’s a tactical consideration here.  Even if the military judge overrules the objection the error is preserved and the court may deal with it directly without having to worry whether the plain error doctrine applies.

To overcome waiver, appellant must convince (1) there was error; (2) that it was plain or obvious; and (3) that the error materially prejudiced a substantial right. United States v. Powell, 49 M.J. 460, 463 (1998). We will reverse for plain error only if the error had “an unfair prejudicial impact” on findings or sentence. Id. at 465.

This comes from:

Under F. R. Crim. Pro. 52(b): plain-error where there is an (1) error, (2) that is plain, and (3) that affects substantial rights, appellate court may correct an error not raised at trial, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

See e.g., Johnson v. United States, 520 U.S. 461 (1997) .