U.S. v. Erickson - This is not your Father's Government Argument Case

Though this recently granted case has a superbly drafted question presented, while CAAFlog was traveling I thought I'd add that, I predict it will be yet another in a long line of government argument cases that gets close . . . but no cigar. The case, U.S. v. Kelly S. ERICKSON. No. 06-0715/AF, was granted review on the following issue:

WHETHER THE TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS SENTENCING ARGUMENT BY COMPARING APPELLANT TO OSAMA BIN LADEN AND ADOLPH HITLER AND BY APPEALING TO POTENTIAL RELIGIOUS BIASES OF THE MILITARY JUDGE BY COMPARING APPELLANT TO THE DEVIL AND ARGUING THAT APPELLANT IS GOING TO HELL.

Great issue, but like its predecessors, with a notable exception in U.S. v. Fletcher, 62 M.J. 175 (CAAF 2005), courts don't think government counsel have much sway over jurors. In a strange reversal of what I learned in PSYCH 101 many years ago, courts generally hold that the judge's dry oral and written instructions, contrasted with government counsel's impassioned arguments, hold more sway with jurors. Someone really ought to include some sociological / psychological research in one of these government argument cases. Since the Bin Laden argument is a go to argument these days, I would think this is the perfect case.