Yesterday's ACCA Fisher opinion [EXPLICIT LANGUAGE WARNING]

In Fisher, ACCA specified a couple of issues regarding sentencing evidence and argument in a guilty plea GCM drug case. United States v. Fisher, __ M.J. ___, No. ARMY 20080012 (A. Ct. Crim. App. Feb. 20, 2009).

Judge Ham's opinion for a unanimous ACCA panel indicates that PVT Fisher had some novel thoughts about extenuation and mitigation. The opinion tells us that he "made a rambling, profanity-laced unsworn statement," which included his comment that his "shit smells better than most of the people in here." Id., slip op. at 4 & 4 n.1. We can only imagine how the trial defense counsel felt when those words came out of the accused's mouth. But ACCA's opinion didn't involve the defense's sentencing evidence; rather, it involved the prosecution's.

The only witness in the government's sentencing case was PVT Fisher's company first sergeant. SFC Essinger testified in aggravation that delay in bringing Fisher's case to trial caused a "perception" that the command was "soft on--on the major crimes." The trial counsel also elicited SFC Essinger's testimony that preparing for Fisher's trial had been labor intensive fand inconvenient for his unit. The defense didn't object to this testimony.

In his sentencing argument, the trial counsel requested 15 months of confinement, a BCD, total forfeitures, and reduction to E-1. That's precisely the sentence that the military judge imposed. The TC's sentencing argument highlighted the inconvenience Fisher's unit suffered to prepare the case for trial, including taking Fisher to appointments with his defense counsel. The TC also asked the military judge to "send a message to soldiers of this unit, many of them seated here today, that the command is not soft on crime." The defense didn't object to this argument.

ACCA specified two issues as to whether this evidence and argument constituted plain error. The government conceded, and ACCA agreed, that "SFC Essinger's testimony concerning the time devoted to appellant's court-martial and trial counsel's use of this evidence in sentencing argument were improper." ACCA held that the evidence and argument "were clear, obvious error." ACCA also concluded that "SFC Essinger's testimony that the delay in appellant's court-martial caused other soldiers to view the command as soft on crime was also clear, obvious error, as was trial counsel’s comment on this testimony in the sentencing argument." ACCA was particularly troubled by the prosecution's evidence and argument about "the hours spent by the command escorting appellant to and from his legal appointments. This evidence and argument is inappropriate and casts in an improper and negative light the unquestioned necessity of appellant's consultation with his defense counsel and preparation of his case."

But ACCA found that the errors were harmless, despite the military judge imposing precisely the sentence requested by the TC in his clearly and obviously erroneous sentencing argument. The ACCA emphasized that the defense didn't object to either the evidence or the argument. Instead of objecting, the trial defense counsel "chose to attack the improper evidence through effective cross-examination, and to attack the improper argument through counterargument." This minimized the damage that the errors caused. In declining to grant relief, ACCA also emphasized that this was a judge-alone trial and noted that "there is no requirement for the military judge to state on the record that he did not consider improper argument or evidence."

ACCA concluded, "Appellant's arguments would carry more weight if trial defense counsel objected at trial or if this case was tried before members instead of by military judge alone. But neither is the case, and, under the facts presented, appellant has failed to demonstrate that any improper evidence or argument materially prejudiced his substantial rights. Therefore, he is not entitled to any relief." Id., slip op. at 10 (internal citations omitted).

The issue in Fisher is similar to that in Stephens, No. 08-0589/AF, which was argued at CAAF on 12 January. The granted issue in Stephens is "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE FATHER OF THE ALLEGED VICTIM TO TESTIFY AS EVIDENCE IN AGGRAVATION, OVER DEFENSE OBJECTION, AS TO THE IMPACT ON THE ALLEGED VICTIM OF THE INVESTIGATION AND COURT-MARTIAL." Stephens, however, was tried before members and the defense counsel objected to the evidence. Fisher's rationale, though not its outcome, will likely be strengthened or undercut when CAAF releases its opinion in Stephens.

[DISCLAIMER: I am one of the appellate defense counsel in Stephens.]