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We granted review in this case to determine whether trial counsel committed plain error during his sentencing argument by comparing Erickson to Hitler, Saddam Hussein, and Osama bin Laden, and describing him as a demon belonging in hell. We conclude that Erickson has failed to establish plain error and therefore affirm the decision of the Court of Criminal Appeals.
Id., slip op. at 2-3.
You know, after that first sentence, I really wasn't expecting the second one.
The defense didn't object at trial. CAAF treated the Air Force Court's conclusion that the TC's argument constituted plain and obvious error as law of the case. See United States v. Erickson, 63 M.J. 504, 509-10 (A.F. Ct. Crim. App. 2006). But CAAF also held that the improper argument did not prejudice the defense.
In explaining the court's rationale, Judge Erdmann noted: "Here, the improper comments amounted to less than a single page out of trial counsel's twenty-two page sentencing argument." Erickson, slip op. at 7. A 22-page government sentencing argument in a judge-alone case? Maybe that's why the military judge sentenced Erickson to confinement for life with eligibility for parole rather than LWOP.
Judge Stucky, joined by Judge Baker, issued a separate opinion to take issue with a portion of the majority's rationale. They argue:
In a judge-alone case like this one, curative measures are superfluous because the military judge is presumed to know and apply the law correctly. United States v. Rodriguez, 60 M.J. 87, 90 (C.A.A.F. 2004). The facts of this case are fortuitous in that the improper conduct is balanced by overwhelming evidence supporting conviction. As such, curative measures are unnecessary under the Fletcher rubric. However, when this Court considers a future case in which trial counsel's egregious conduct is balanced against evidence of guilt of less than overwhelming weight, a Fletcher analysis would seem to require the military judge in that case to impose significant curative measures on himself to counterbalance the improper argument. This could not only lead to an absurd result, but also would contradict the principle that the military judge is presumed to
know and apply the law correctly.
This rationale misses the mark a bit because the issue in this case concerned the sentencing argument. The strength of the evidence supporting conviction is irrelevant.
But even if the separate opinion had identified the proper context in attacking the notion of curative measures in a bench trial, Judge Erdmann's majority opinion specifies what such "curative measures" would be in a judge alone case. "While not the case here, if a defendant introduced evidence to rebut the presumption [that the military judge knows and follows the law], we would then consider whether the military judge undertook 'curative measures,' such as a clear statement on the record that he would not consider the improper comments." Erickson, slip op. at 9 n.2. That seems to be a very efficient rule -- if the military judge spots improper argument and mentally excludes it from the sentencing calculation, the military judge should say so on the record so everyone will know. Had the military judge done so in this case, there would have been no need for the Air Force Court or CAAF to wrestle with this issue.
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As it happens I was the Assistant Trial Counsel in this case, and largely wrote the contested part of the sentencing argument (though I didn't deliver it - that was the talented Circuit Trial Counsel Steve Kelso).
As it happens (and I feel it's relevant to the Court's consideration), the references regarding Hitler, Saddam, etc. weren't really directly compared to Sgt Erickson. The argument went, more or less, that when one thinks of evil, one thinks of these open, conspicuous faces of evil, but in fact there is a more dangerous brand of evil, that which (like Erickson) appears benign, nonthreatening, and even kind. You can fill in the blanks.
Ultimately, this case involved conduct that was almost unimaginably monstrous, and frankly I think in a judge-alone case it would have taken a more extreme flavor of prosecutor "error" to lead to a remand. This case was an outlier by any standard, hence the fact that it remains the highest sentence ever adjudged in an AF molestation case. Whatever one may think about the way we argued it, justice has been served.
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