CAAF decides Marsh

United States v. Marsh.

This was a case where the appellant was complaining about the TC’s argument on sentencing:  an improper comment on his right to make an unsworn statement, and inflammatory comments.  CAAF holds no improper comment on the unsworn, but there was improper inflammatory comment by the TC.

Marsh argues that the trial counsel unduly inflamed the passions of the court members on two grounds: his conviction for false official statement bears no relevance to his duty or ability to repair aircraft; and, the trial counsel invited the court members to put themselves in an aircraft repaired by Marsh and then instilled fear that the aircraft would crash.

The trial counsel also must not inject matters that are not relevant into argument. Id. (citing United States v. Fletcher, 62 M.J. 175, 180 (C.A.A.F. 2005); R.C.M. 919(b) Discussion). Nor can the trial counsel ask court members to place themselves in the shoes of the victim or a near relative.  United States v. Baer, 53 M.J. 235, 237-38 (C.A.A.F. 2000).  [This sounds like a golden rule argument.]

Trial counsel’s invitation to the court members to imagine themselves as potential future victims only served to inflame a fear as to what might happen if the panel did not adjudge a discharge.

The dissent looks to whether or not, conceding error, it was plain and obvious.

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