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