Wednesday, September 12, 2007

Supreme trio

The Supreme Court's web site today reflects the docketing of three new cert petitions seeking review of CAAF decisions -- all three Air Force cases (and, interestingly enough, with three sequential docketing numbers). I am happy to report that all three petitioners are represented by counsel. Erickson v. United States, No. 07-316; Chapman v. United States, No. 07-317; Tippit v. United States, No. 07-318.

CAAF's decision in Erickson, of course, resolved the long-running legal dispute over whether it is plain error for a prosecutor's sentencing argument to analogize the accused to Hitler, Saddam Hussein and Osama bin Laden while also describing the accused as a demon belonging in hell. United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007). CAAF decided Chapman by summarily affirming on 26 June. Tippit is a speedy trial case focusing on the consequences of a CA withdrawing charges rather than dismissing them. United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007).


Mike "No Man" Navarre said...

While I firmly believe CAAFlog is correct in his assessment of the duty of statutory defense counsel to pursue cert. petitions, I don't think these cases are the three to convince Army DAD that their current volume of cert. petitions is incorrectly low-with the possible exception of Erickson. Erickson is a case that pursues an issue I always thought was given less attention than it deserved. Prosecution arguments can be powerful stuff in shaping a jurors mind about how all the testimony and evidence fits together. There is at least one social science study of death penalty cases that has concluded prosecutor arguments are more important than.judge's instructions-which jurors are assumed to follow. You can argue the effect is lesssened in the military, but u don't buy it. Prosecutors are not seen by jurors as advocates, they are seen as neutral conveyors of the facts and, if anything, advocates for justice. The Supreme Court's standard for improper argument in Donnelly v. DeChristoforo has been so diluted I applaud counsel for taking a TC argument case to the show.

John O'Connor said...

Without casting aspersions on the decision to file a cert petition, I have to agree with No Man that these are not cases likely to be granted review. As for Erickson, which No Man seems to find the most meritorious of the three petitions, it is not a good vehicle for cert because (1) it was a judge-alone sentencing argument (rendering interesting but irrelevant No Man's social science study on the effect of argument on jurors; and (2) there was no objection at trial.

Of course, and I think I probably said this when Erickson was decided, the bigger question is why a trial counsel would think that making this type of emotional closing argument in a judge alone sentencing case was worth the cost of appellate resources caused by making that argument, one that not only raised the Hitler/Saddam issue but also issues of religion that are touchy in argument. Was there a real risk that the MJ would somehow miss out on the seriousness of these offenses if you just basically repeated what the accused admitted to? This is the type of head in the sand overaggressiveness that disserves the government, and way too many trial counsel fail to appreciate that.

If I were the judge, I would have let the TC finish, announced that I am not considering any part of the TC's argument, and then hammered the guy for some truly offensive offenses.

Anonymous said...

Wasn't this case a judge alone trial with no objection from the defense counsel? You don't need to be Kreskin to figure out the outcome of this cert petition. Of course, this assessment is without quasi-ethical allegation of filing or not filing on behalf of one's client.

Mike "No Man" Navarre said...

I agree with everything written above, except one word, "irrelevant." While the judge alone, no objection nature of Erickson renders the case unlikely to obtain cert., I think it presents the type of case that is relevant to statutory appellate counsel's duty to pursue cert. petitions. Erickson has 1) a legitimate legal issue with cases supporting the argument that 2) has a constitutional foundation and 3) contains facts that are an extremem (or at least non-frivolous) example of those legal principles. The facts of the case are less than perfect for obtaining cert., but I think Army DAD can look at the case and say it was non-frivolous.

John O'Connor said...

Actually, No Man, I used the word "irrelevant" to state that a social science study about the effect of closing argument on juries is "irrelevant" to a case when the trier of fact is a judge. I didn't say that argument is "irrelevant" when the trier of fact is a judge. Also, both Mr. Anonymous and I went out of our way to say that we were expressing no opinion whatsoever on whether an appellate counsel ought to seek cert in a case such as that, just that it's likely an effort in vain.

Anonymous said...

I read the argument in Erickson and I thought it was excellent. I applaud the trial counsel who made the argument. I do not believe the issue has any merit. A trial counsel can not and should not assume that the military judge will sentence appropriately and that his sentencing argument is useless. Military judges sometimes do need a reminder of the evil that sits before them. The trial counsel should not refrain from making the most powerful sentencing argument he can out of fear that some appellate defense counsel will make an issue out of it later.

John O'Connor said...

Mr. Anonymous #2 said:

"The trial counsel should not refrain from making the most powerful sentencing argument he can out of fear that some appellate defense counsel will make an issue out of it later."

I disagree. Retrials are especially costly in the court-martial context, both in terms of cost and mission disruption. When a trial counsel has a conviction and a sure-fire discharge and lengthy sentence to confinement, I believe it is incumbent on the TC to make sure the record he sends to Washington is a clean one.

To me, comparing any accused to Hitler, Saddam, etc., and saying he belongs in Hell are improper not because they are incorrect (thought they might be), but because they create a real risk of reversible error. The worst thing that could have happened for the government here would have been for the DC to object and the MJ to overrule it. You can't always count on a court using Sales to fix the error if they find one.

John O'Connor said...

The word "thought" should have been "though" in my last post.

And, having gone back and read Erickson, I note that the CCA found that the TC's argument was a clear and obvious error, a finding CAAF accepted for purposes of its analysis. So, to the extent Mr. Anonymous #2 "applaud[s] the trial counsel who made the argument," and do[es]not believe the issue has any merit," the fact is that the TC DID commit error and that the error WAS plain and obvious.

Simply put, if the appellate court says you erred, then you did, by not conforming your conduct in a way sufficient to result in a finding of no error. The TC is fortunate that there was no finding of prejudice, or there was a real risk of screwing up a case that should have been simple and straightforward.