1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense objection) gets the defense and government, and court to agree there was an error and to get a new sentencing hearing.[1]

2. It is NEVER EVER a good idea for an accused (or one of his witnesses)[2] to impeach the verdict. Gone are the days when we could legally seek reconsideration of the findings, even through sentencing. The legitimate tactic at the time was to present the accused’s version of events through his unsworn and then argue that the members may wish to reconsider the findings.

While impeaching the verdict is prohibited it is usually not a good idea to poke a finger in the eye of the members who have just convicted you and now are giving a sentence.

Although an accused is provided a wide berth in the content of his unsworn statement, there are certain limits in what matters he may raise before the sentencing authority. United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998). Specifically, the Court of Appeals for the Armed Forces has recognized that an accused is generally prohibited from impeaching the findings of the factfinder.

United States v. Porter, No. ARMY 20110470, 2013 CCA LEXIS 946, at *8 (A. Ct. Crim. App. Oct. 31, 2013). Note, Porter arose from TC arguing that the accused had failed to impeach the verdict, “Appellant now complains that trial counsel’s repeated comments during a sentencing argument that appellant never denied the assault during his unsworn statement was improper argument. We agree.”

[1] There may have been a get-out for the prosecution, but it was likely not raised at trial or on appeal–else the court would have addressed it.

[2] See, e.g., United States v. Westcott, ACM 39936, 2022 CCA LEXIS 156 (A. F. Ct. Crim. App. Mar. 17, 2022) (unpub.) rev. denied 82 M.J. 438 (C.A.A.F. 2022).

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

As defense counsel we all need a Hamish (not one we have killed of course). Sentencing is often the time in a trial when the ability to put as much favorable influential evidence or information before the fact-finder is at its apogee. That’s a good thing because the actual fundamental purpose of sentencing is – to parse the rules, “to mete out an appropriate sentence for this offender and offenses.” For some reason that’s why it struck me that United States v. Takara, ACM S31832 (A.F. Ct. Crim. App. 13 July 2012)(unpub.), is worth the read.

Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer’s recommendation for his client. The report was “misleading and inaccurate,” Cargill wrote in a protest letter. (Emphasis added.)

Here is a link to the full article in the Roanoke (VA) Times.

Probation officers work for the court, for judges — not for the defense or the prosecution, Conrad said. Any facts the probation officer turns up are supposed to be in the report shared with the defendant and the lawyers, Conrad said. The sentencing recommendation is supposed to be the probation officer’s interpretation of the facts. People accused of a crime have a constitutional right to face their accusers, but that’s at trial, for a judgment of guilt or innocence, Conrad said.

Remember, CAAF has held that the Sixth Amendment right to confrontation does not apply at sentencing, but that Fifth Amendment due process does. See United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001).

No. 10-0494/AF. U.S. v. Caleb B. BEATY. CCA 37478. Review granted on the following issue: WHETHER THE SENTENCE MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE DETERMINED THE SENTENCE BASED ON THE INCORRECT MAXIMUM PUNISHMENT. Briefs will be filed under Rule 25.

Note the accused was sentenced to confinement for 10 months, a bad conduct discharge, and RIR to E-1 for possession of child pornography.

Before AFCCA the appellant:

On appeal the appellant challenges the military judge’s determination of the maximum punishment, arguing that the language of the specification precludes application of the analogous federal law maximum of ten years under the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C. § 2252A. Finding no error prejudicial to the substantial rights of the appellant, we affirm. The specification provided fair notice that the gravamen of the charged offense is possession of child pornography, the appellant admitted that he knowingly possessed images of minors engaged in sexually explicit conduct, and the military judge correctly determined the maximum punishment by referring to the analogous federal offense of knowing possession of child pornography, in violation of 18 U.S.C. § 2252A.

1. Instructions.

A military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even in the absence of a request by the parties. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)). Mistake of fact is a special defense that a military judge must instruct court members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M. 920(e)(3). Waiver does not apply based on the mere failure to request the affirmative defense instruction or to object to its omission. United States v. Taylor, 26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing waiver of a reasonably raised affirmative defense. United States v. Guitterez, 64 M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994)). For a waiver to be effective, it must be clearly established that appellant intentionally relinquished a known right. See United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).

2. Sentencing. After the defense called witnesses on sentencing to testify as to the accused rehabilitative potential, the prosecution without objection put on a rebuttal case. The issue is to what extent and with what foundation can rebuttal witnesses testify to their disagreement on retention.

a. The court first made the standard “plain error” analysis before getting to the merits of the issue because the defense had not objected at trial.

Based on the foregoing analysis, we find clear and obvious error in the admission of evidence which both lacked foundation and raised command influence concerns, without proper limiting instruction. The evidence conflicted with the guidance set forth in Griggs related to permissible government rebuttal to so-called retention evidence. Griggs, 61 M.J. at 410.

b. This case deals with the situation where the prosecution is seeking to offer rebuttal testimony to testimony that the accused has rehabilitative potential and that a witness would serve with the accused again.

Here, we examine the scope of government sentencing evidence offered in rebuttal to so-called “retention” evidence.

This is different than when the prosecution is first offering rehabilitation evidence.

First, with regard to admission of the testimony of several government rebuttal witnesses, we find the military judge committed error by permitting government rebuttal testimony essentially calling for the panel to discharge appellant without imposing a meaningful foundation requirement or providing a necessary limiting instruction.

A common problem with trial counsel is wanting to offer testimony where the witnesses only basis is that the person has been convicted of the charges. So keep this in mind whenever the prosecution wants to offer testimony as to lack of rehabilitation.

. “Simply stated, the opinion envisioned by R.C.M. 1001(b)(5) can only be expressed by a witness who has a rational basis for his conclusions, founded upon the accused’s service, performance and character.” United States v. Ohrt, 28 M.J. 301, 304 (C.M.A. 1989). See also United States v. Armon, 51 M.J. 83, 86-87 (C.A.A.F. 1999). Logically, that opinion cannot be based principally upon the offense. Horner 22 M.J. at 296 (Testimony was “plainly based not upon any assessment of appellant’s character and potential, but upon the commander’s view of the severity of the offense. Such testimony is simply not helpful to the sentencing authority.”). See also Ohrt, 28 M.J. at 307 (testimony lacked a proper foundation to demonstrate opinion was personalized and based upon the accused’s character and potential).

3. Instructions on sentencing. The court has recommended to COL Henley, the proponent of the Army Benchbook that the following guidance be added.

For evidence offered in extenuation or mitigation You have heard the testimony of [a] witness[es] indicating an opinion regarding [a desire to continue to serve with the accused] [a desire to deploy with the accused] [the accused’s rehabilitative potential]. The opinion of a fellow service member indicating [a desire to continue to serve with] [a desire to deploy with] [the positive rehabilitative potential of] an accused is a matter pertaining to the accused’s character which may mitigate the range of permissible punishments you adjudge. For evidence offered in aggravation or rebuttal The opinion of a witness [that he or she does not wish to continue to serve with the accused] [that the accused should not [deploy with] [or] [return to] the unit] [that the accused has limited rehabilitative potential] is not an aggravating factor and you cannot use that evidence to increase the severity of the accused’s sentence. Concluding Instruction You may not consider such testimony as a recommendation regarding the appropriateness of a punitive discharge or any other specific sentence in the accused’s case. Whether or not the accused should receive the severe punishment of a punitive discharge or any other punishment is a matter for you alone to decide in the exercise of your independent discretion based on your consideration of all the evidence you have heard. No witness may suggest a specific element of punishment or sentence. [This rule does not apply to testimony by the accused regarding personal requests he/she may make in relation to specific punishments.] In evaluating the ability of a witness to comment on the accused’s character, you should consider how well the witness knows the accused, and the nature, quality, and history of contacts the witness has had in determining the value of any opinion the witness may render with regard to the accused.

Both the Montgomery and Post 9/11 GI Bills are worth over $49,000. This money is not a loan and will help you cover the costs of getting a degree. Full-time students receive up to $1,368 a month no matter how much tuition costs. The Post 9/11 GI Bill may even give you a monthly housing stipend of $1,200.

Should military veterans get a break when they are sentenced for crimes?

Asks a piece in the Wall Street Journal. This is interesting in light of some discussion on CAAFLog about sentencing in court-martial and sentence ranges under the UCMJ. Seems some civilian judges are more interested in giving a sentence based on the whole person and individualized rather than a set amount.

“We dump all kinds of money to get soldiers over there and train them to kill, but we don’t do anything to reintegrate them into our society,” says John L. Kane, a federal judge in Denver.

Two weeks ago Kane sentenced a former Iraq war vet, John Brownfield (pictured in Iraq in 2004), to probation rather than prison after he pleaded guilty to illegally selling tobacco to prison inmates when he worked as a correctional officer in 2007. Kane did so despite the fact that Brownfield’s lawyer and the prosecution initially recommended that he sentence Brownfield to a year in prison.

Here’s a WSJ Law Journal piece, which details the proliferation of special criminal courts being set up across the country to keep vets out of prison as well as examples of leniency by federal judges. Click here for Kane’s absorbing 30-page sentencing memo in the Brownfield case.

The phenomenon is stirring up controversy. Some legal experts say singling out veterans risks establishing a two-tier system of justice.