Whaa, whaa, it’s just so hard.

United States v. Fisher, ARMY 20080012 (A.Ct.Crim.App. 20 February 2009).  This case was submitted on its merits.  After a review, the court specified two issues, both of relevance to trial advocates and military judges.  After finding error, the court found no relief warranted because the error was not prejudicial.  We have addressed something similar in the past.  See, Trial Counsel Argument – A Judge's Duty.

Specified Issues:I.

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE ALLOWED TESTIMONY FROM SFC ESSINGER AND ARGUMENT BY TRIAL COUNSEL, DURING AGGRAVATION AND SENTENCING, THAT: (1) THE COMMAND WAS PERCEIVED TO BE “SOFT ON CRIME” DUE TO THE LENGTH OF TIME IT TOOK TO BRING THE CASE TO TRIAL, AND; (2) THE ACCUSED SHOULD BE PUNISHED FOR THE MAN-HOURS REQUIRED “DEALING WITH LEGAL PAPERWORK, COUNSELINGS, AND TAKING THE ACCUSED TO AND FROM APPOINTMENTS”?

II.

IF THE MILITARY JUDGE COMMITTED PLAIN ERROR, DID THE ERROR AFFECT THE ADJUDGED
SENTENCE?

For Defense Counsel.  This was another case where the government is seeking to impose additional punishment because it had to investigate, prosecute, and deal with an accused.

[T]estimony relating to the “administrative burden of the court-martial process” is not ordinarilyadmissible under R.C.M. 1001(b)(4)[.]

Appellant also made a rambling, profanity-laced unsworn statement.

Because evidence in aggravation must “directly relate” to the offenses of which the accused is found guilty, the rule is a “higher standard than mere relevance.” Hardison, 64 M.J. at 281 (quoting United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)(internal quotations omitted)). This includes “evidence of the natural and probable consequences of the offenses of which an accused has been
found guilty,” but “not every circumstance or consequence of misconduct is admissible . . . . An accused is not ‘responsible for a never-ending chain of causes and effects.’” United States v. Stapp, 60 M.J. 795, 800 (Army Ct. Crim. App. 2004), aff’d, 64 M.J. 179 (C.A.A.F. 2006)(quoting United States v. Witt, 21 M.J. 637, 640 n.3 (A.C.M.R. 1985)); see also Rust, 41 M.J. at 478. “The evidence sought to be admitted must establish that the offense of which appellant has been found guilty ‘contributed to those effects which the government is trying to introduce in evidence.’” Id. (quoting Witt, 21 M.J. at 641). “Moreover, appellant’s offense must play a material role in bringing about the effect at issue; the military judge should not admit evidence of an alleged consequence if an independent, intervening event played the only important part in bringing about the effect.” Id. at 800-01 (citing Rust, 41 M.J. at 478).

It appears this appellant did not get relief because his defense counsel did not object.  Slip op. at 8.

For Judge.  Previously addressed issues of the military judges sua sponte responsibility to catch and correct obvious errors.  (Although note this was an MJA guilty plea case.)  The court acknowledged that this was a judge alone trial, further they acknowledged the presumption that the judge knew and followed the law.  However, it appears that ACCA has set out a "new requirement" that a military judge should say something on the record.

While not necessary to trigger the presumption that he knows the law and follows it, a transparent statement by the military judge that he is not considering improper evidence or argument forcefully moots any potential issues and, we believe, further increases the perception of fairness in the military justice system.

United States v. Fisher, Slip op. at 9, n.5.

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