United States v. Witt, XX M.J. XX (C.A.A.F. 2023)
What this case is about, in its most simple terms: This case upholds the three-part prejudice analysis examining the affect improper sentencing argument may have had on the punishment articulated in United States v. Fletcher. Importantly, the Court relies on the egregiousness of the misconduct in this case to uphold the sentence.
Facts of the case (make them as interesting as possible):
In 2005, appellant was convicted of the murder of Senior Airman A.S. and his wife, J.S., and the attempted murder of Senior Airman J.K.
Appellant and the couple were friends until he attempted to kiss J.S. J.S. told her husband about appellant’s actions at a get together on the evening of 4 July 2004. After being told by his wife about the attempted kiss, SRA A.S. and his friend SRA J.K. called Appellant several times to confront him about the attempted kiss, as well as to threaten to tell his leadership about an alleged affair Appellant was having with an officer's wife.
After the phone calls, appellant changed into his battle dress uniform, and drove to A.S.'s on-post residence where A.S., J.S., and J.K. were located. Appellant waited outside the home for over two hours before confronting them, stabbing all three in the process. SRA A.S. and J.S. died from their wounds; SRA J.K. suffered extensive injuries, requiring multiple surgeries and hospital stays.
In October 2005, appellant was initially convicted and sentenced to death. What followed is a complicated and extensive appellate history, which ultimately resulted in appellant receiving a new sentencing hearing due to his defense counsels’ ineffectiveness during the presentencing proceedings.
On rehearing, appellant was sentenced to life without the possibility of parole. During sentencing argument trial counsel asked the panel variations of the following: "[w]hat will you stand for"; "[w]here will you draw the line"; "what risk will you accept on someone else's behalf"; and if the panel would not sentence Appellant to death in this case, in what case would they do so? Trial counsel made these types of comments approximately seventy times while also displaying PowerPoint slides which contained the same questions. Additionally, throughout his argument trial counsel unequivocally requested the panel return a sentence of death.
Appellant again appealed to the AFFCA who ultimately upheld his sentence; finding that trial counsel’s argument was error, but that appellant was not prejudiced. Appellant then appealed to CAAF, who certified the issue discussed below.
What issue(s) did the CAAF grant: During sentencing proceedings the trial counsel urged the panel members to consider how the sentence they imposed would reflect on them personally and professionally, and suggested that the members would be responsible for any harm Appellant committed in the future. Did the trial counsel's sentencing argument constitute prosecutorial misconduct that warrants relief?
Holding/Relevance:
True, we can never know what exactly is in the mind of the members, yet here it stands to reason that they applied their own critical analysis to this case given their rejection of the death sentence despite trial counsel's comments. Thus, we find that Appellant has suffered no prejudice.
This case preserves the prejudice test for improper argument. The strength of the government’s case remains an important factor when determining whether an accused suffered prejudice because of a TC’s improper argument.
Synopsis of the important points of the decision:
This is a case about prejudice. Prosecutorial misconduct, on its own, is insufficient to overturn a conviction. As the court states:
“[P]rosecutorial misconduct by a trial counsel will require reversal when the trial counsel's comments, taken as a whole, were so damaging that we cannot be confident that the members convicted the appellant on the basis of the evidence alone." United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014)
The appellate courts will rely heavily on the record when deciding whether the accused was prejudiced by a TC’s impropriety. It is important, as always, to not delve into impermissible argument. If this does happen, the weight of the evidence supporting the sentence will be central to the appellate court’s future analysis.
Result: The CAAF affirmed AFCCA’s decision.
How this case may affect the field (note other significant cases/rules implicated):
Government Counsel – Sentencing argument has been a hot-button issue for the appellate courts. The RCMs and the MJBB proscribe allowable sentencing arguments; stick to those.
Defense Counsel – Object and keep objecting to impermissible arguments. While plain error may not have played an important role in this case, it could in the future.