Trial Counsel argument

The Coast Guard has issued an opinion in United States v. McDonald, __ M.J. ___ (C.G. Ct. Crim. App. April 24, 2009). This opinion discusses why the standard trial counsel sentencing argument in drug pop cases is typically erroneous. I call it the typical absence of proof problem for trial counsel.

The standard for determining the appropriateness of an argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused. United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).

Appellant relies on United States v. Skidmore, 64 M.J. 655 (C. G. Ct. Crim. App. 2007) to support the conclusion that the argument at issue amounts to plain error. In Skidmore, this Court held that it was plain error for the trial court to hear evidence and argument on the fact that the accused was a boarding officer because that fact was not “directly related” to the single drug use offense charged in that case. Id. at 661 (citing United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F 2007)). Skidmore provides guidance to trial counsel [and defense counsel] presenting and arguing [or objecting to] evidence in aggravation in drug cases,

In United States v. Harris, 67 M.J. 550 (C.G.C.C.A. 2008), this Court elaborated on its holding in Skidmore. In Skidmore, this Court held that the government’s attempt to use the appellant’s duties as a boarding officer in aggravation under R.C.M. 1001(b)(4), in the complete absence of evidence linking the appellant’s drug use to the law enforcement mission, did not present evidence of significant adverse impact on the mission, discipline, or efficiency of the command or any of the other factors in R.C.M.1001(b)(4) and was plain error.

There are few if any military safety statistics showing any causal connection between the use of illegal drugs (or legally prescribed drugs through base pharmacies) and actual safety or duty problems. By that I mean death, injury, or damage to property, showing up incapacitated for duty due to drugs. Contrast that to the number one legal drug of abuse – alcohol, and you’ll understand, but ignore what I mean.

If the use of controlled substances is so dangerous, why then does each military pharmacy distribute drugs in millions of doses, and then with few exceptions, the military member is returned to duty? I don’t understand this if the problem is that the ingestion of controlled substances is dangerous to person and unit. Why are those service members getting controlled substances through the pharmacy, except in a few cases, not being placed SIQ with no duty?