Saturday, February 21, 2009

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.]


Anonymous said...

This is the problem with trying to call a sentencing witness in a drug case. Having been forced, as a young TC, to call a sentencing witness this is the usual outcome. You get a 1stSgt who comes in and tells the MJ how this case was a big hassle and the accused is a dirt bag. This is not sentencing evidence. But come Monday, another JA will be told that he or she must have a sentencing witness and the 1stSgt will make a good witness.

Then a massive number of man hours will be consumed to brief, argue, and write an opinion to come to the exact same outcome: Private Fisher would have received the same sentence with or without this sentencing witness.

John O'Connor said...

Word, dreadnaught. I rules on aggravation are so stringent that it's rare in a victimless crime to have sentencing evidence worth the appellate risk, particularly in judge-alone sentencing.

Anonymous said...

Young, aggressive TCs are understandable. Bad trial judges are not. The judge should never, ever let a solid conviction go down the tubes because of impermissible sentencing evidence - stop the TC sua sponte, or after hearing the questionable sentencing evidence, state on the record that you DID NOT consider it in arriving at your sentence. Judges have a duty to protect the record. They are presumed to know the law; so why not show it?

Anonymous said...

The sad part about this case is that the counsel elicited what is becoming more and more prevalent. Military judges continue to disregard the fact that unreasonable delay is detrimental to good order and discipline and that such delay negatively impacts the mission. Witnesses transfer and their memories fade. But who really cares - it's just the Government. The Government is not a real victim - even though the Government is composed of many, but yet identified as one.

Military justice is slowing down. Anybody that thinks this is because less crime is being committed is not being honest with herself. It seems obvious that the disorganization of military justice and lack of a professional merit based judiciary continues to cause needless delay. This needless delay, in turn, continues to be the impetus for a CA's decision to dispose of cases outside of the court-martial venue. It does negatively impact a command's mission when courts cannot get a case to trial within a reasonable time. It does contribute to the accurate perception that military justice is severely flawed and getting worse when it takes too long to get a case to trial and when military judges fail to keep things moving. It is detrimental to good order and discipline when Soldiers in a BCT see nothing happening to Soldiers that commit violations of the UCMJ. Justice delayed is often justice denied. Everybody seems concerned with the Accused's rights - well let's start having a conversation about victim's rights - even when the victim is a real person or the Government.

Anonymous said...

Anon 1137

The military continues to appoint officers to the bench that have very little military justice experience. One solution may be to appoint civilians to 10 year terms of office as military judges. This might not be popular. However, no longer can it be assumed that military judges know the law. This case is an obvious example.

Paul said...

Why appoint a civilian with ZERO military justice experience to the bench to solve that problem? I agree that appointing military judges for longer than 1/2 a normal tour length is needed but I disagree that a civilian who has no concept of good order and discipline or the impact of a drug use on a ship may have.

Though I applaud the thinking of alternative solutions to what I call a crisis in the military judiciary. Granted a portion of MJs are fine but more and more it seems judges are appointed for that last tour or because they are in the same geographic location as the open MJ billet. Maybe a Cox Commission topic?

Other possible examples are a separate, promotable track for MJs, asking some MJs to stay on a retire/retain basis, appointing retired MJs or other military practitioners to the bench as a DoD term contract.

Anonymous said...


I absolutely agree. There is a crisis within the ranks of the judiciary. Nobody wants to sound the bell - but the bell needs to be sounded. The absence of a professional merit based judiciary is the primary reason the military justice system is viewed as a third tier venue. This crisis can and must be addressed.

Ever wonder why counsel are NEVER asked to anonymously evaluate miliary judges? Such evaluations are the norm in a professional justice system. The judiciary is afraid of the results - that's why they oppose this course of action. If the stakeholders of military justice are not free to give their opinions of military judges without fear of retribution, nothing will change. The crisis that looms large over the military judiciary will only get worse.

Oversight of military judges will not interfere with an independent judiciary. Instead, it will help garner respect for the judiciary - respect that is severely lacking.

I like the idea of appointing civilian judges that are qualified to sit as judges for military courts-martial. A merit based judiciary will, no doubt, only select judges that have prior experience with military justice.

If the stakeholders within the military justice want to see the system improved, begin with a survey that will look at how military judges are viewed by those that practice before them.
There is nothing to lose, yet there is much to gain. Perhaps this is something the Cox commission should consider.

Dwight Sullivan said...

Here's a serious question: what's so great about anonymous critiques of judges? For those of us who are military officers, isn't moral courage an important part of our job description? If we have criticisms of military judges, why shouldn't we make them on the record?

Also, what would anyone do with the anonymously provided information? What benefit would be obtained by collecting it? (These are serious questions, not rhetorical ones.)

Anonymous said...

Fisher raises a more fundamental question - did ANY of the lawyers in that courtroom understand the law? From the TC who called the witness (and prepped him) and then made the improper argument, to a DC who sat idly by failing to object [which at least implies s/he didn't realize the objectionable nature of the evidence and argument], to an 0-6, MJ, who as ANON 1137, notes should have shut down the witness and argument then and there and made an appropriate disclaimer.

The problem of delay - at least in part - is also due to the notion that there aren't enough Defense resources to allow the defense to reasonably investigate or get expert assistance without having to litigate every single application. A good SJA that wants to move cases along, knows how to do that - be "reasonable."

Many of the problems identified on this thread involving the Trial Judiciary are a direct result of the CCA's not slapping down stupid stuff. But never fear, the MJ in Fisher is now on the Army CCA Bench.

John O'Connor said...

Building on Dwight's comment, if an MJ were removed from the bench because of poor evaluations from the military justice bar, you would have a potential firestorm of accusations that the trial counsels (in this case, the "Government") are dumping judges who don't toe the government's line. You'd have a complaint that the judiciary isn;t independent if they got removed from the bench of not assigned future judicial billets based on evaluations coming at least in part from the trial counsels.

egn said...

Off topic to the original post, but relevant to the evolving discussion of military judges, Col Kohlmann, former chief judge of military commissions, wrote an opinion piece published in today's Miami Herald in defense of his profession: Military Judges Conduct Fair Trials.

Anonymous said...

Let's just be honest. If the CG had openly ordered the MJ to hammer the victim, and if the chief of staff had openly threatened the 'defense counsel' if he objected, the ACCA would still find no improper effect on the sentence.

"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."

Anonymous said...

non 1046:

I don't think you're correct. The scenario you describe is clear unlawful command influence and the government would have borne the burden of disproving its influence upon the sentence, by proof beyond a reasonable doubt. In light of the adjudged sentence being exactly what trial counsel recommended, I'm not sure the government could have sustained its burden (although the accused's unsworn statement certainly would have helped).

Anonymous said...

***I don't think you're correct. The scenario you describe is clear unlawful command influence and the government would have borne the burden of disproving its influence upon the sentence, by proof beyond a reasonable doubt.***

So is the 1st Sgt claiming that 1) the fact of the justice process itself meant that the accused deserved more time, and 2) the fact that the accused was allowed due process meant the command was seen as soft and therefore the mission of the military demanded that he get over punished.

The MJ was just sitting there nodding along, and 'bam', gave the accused the same sentence the government requested.

Phil Cave said...

And the appellate defense counsel never raised the issue either. It was the court that found and specified the error.
Having done cases with the trial judge I'm not so sure he did consider the improper evidence. I am surprised he let it happen or didn't say anything on the record though.

Anonymous said...

At a minimum the MJ should have performed his gate keeper function, and if he didn't do it at the time, after he deliberated and arrived at the same sentence recommended by TC he should have indicated on the record that the improper evidence and argument were not part of the calculus in arriving at what he thought was a just sentence.