We’ve seen some recent cases discussing the issue of over zealous argument by trial counsel on the merits. What to do, oh what to do.
How about object!
Although not essential to the decision in this case, another matter raised by trial and appellate defense counsel warrants comment. In argument prior to sentence, trial counsel stated, "I think basically what we have is a fellow who had committed an extremely serious offense, an offense that is tantamount to stealing — giving a rubber check for merchandise." Such argument attributed to the accused a specific criminal intent neither admitted by him nor proved by the evidence, totally irrelevant to the trial at hand, and of a more serious nature than encompassed by the charges. Code, supra, Article 121. Such argument is impermissible and prejudicial to the substantial rights of the accused. Although trial defense counsel did not object to the statement, it was incumbent upon the military judge, sua sponte, to interrupt the argument and give cautionary instructions to the members of the court. His failure to do so prejudiced the sentence deliberations and would ordinarily require a rehearing on sentence or reassessment at this level. United States v. Knickerbocker, 25 U.S.C.M.A. 346, 54 C.M.R. 1072, 2 M.J. 128 (1977); United States v. Ryan, 21 U.S.C.M.A. 9, 44 C.M.R. 63 (1971). Such remedy is not required in this case, however, because of our action with respect to the findings.
United States v. Bethea, 3 M.J. 526, 529 (A.F.C.M.R. 1977).