United States v. Witt

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Andrew P. WITT, Senior Airman
United States Air Force, Appellant
No. 22-0090
Crim. App. No. 36785
Argued December 6, 2022—Decided June 5, 2023
Military Judge: Mark A. Bridges
For Appellant: Major Jenna M. Arroyo (argued);
Major Kasey W. Hawkins and Mark C. Bruegger,
Esq. (on brief).
For Appellee: Major Morgan R. Christie (argued);
Colonel Naomi P. Dennis, Lieutenant Colonel
Thomas J. Alford, and Mary Ellen Payne, Esq. (on
brief); Lieutenant Colonel Amanda L. K. Linares,
Lieutenant Colonel Matthew J. Neil, and Major
Zachary T. West.
Judge SPARKS delivered the opinion of the Court,
in which Judge MAGGS and Senior Judge
CRAWFORD joined. Judge HARDY filed a separate
opinion concurring in the judgment. Chief Judge
OHLSON filed a separate dissenting opinion.
_______________
United States v. Witt, No. 22-0090/AF
Opinion of the Court
Judge SPARKS delivered the opinion of the Court.
In 2005, a general court-martial consisting of officer
members convicted Senior Airman Andrew P. Witt
(Appellant), contrary to his pleas, of one charge and two
specifications of premeditated murder in violation of
Article 118, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 918 (2000); and one charge and specification of
attempted premeditated murder in violation of Article 80,
UCMJ, 10 U.S.C. § 880 (2000). The panel sentenced
Appellant to death.
On appeal, the United States Air Force Court of
Criminal Appeals affirmed the findings, but set aside the
sentence and ordered a rehearing, after finding that
Appellant had received ineffective assistance of counsel
due to trial defense counsel’s failure to investigate certain
mitigating evidence. United States v. Witt, 72 M.J. 727,
758-66 (A.F. Ct. Crim. App. 2013). On reconsideration, the
lower court held that the trial defense counsel’s defective
performance did not result in prejudice and affirmed the
approved findings and sentence. United States v. Witt, 73
M.J. 738, 824-25 (A.F. Ct. Crim. App. 2014). Relevant to
the current appeal, this Court vacated the lower court’s
second opinion and returned the case for a sentence
rehearing in accordance with the lower court’s original
opinion. United States v. Witt, 75 M.J. 380, 385 (C.A.A.F.
2016).
On rehearing, Appellant was sentenced to confinement
for life without the possibility of parole, a reduction in
grade to E-1, forfeiture of all pay and allowances, a
reprimand, and a dishonorable discharge. In relevant part,
on appeal to the lower court, Appellant argued that trial
counsel committed prosecutorial misconduct during
sentencing. United States v. Witt, No. ACM 36785 (reh),
2021 CCA LEXIS 625, at *131, 2021 WL 5411080, at *40
(A.F. Ct. Crim. App. Nov. 19, 2021) (unpublished). The
lower court found error in some of the Government’s
sentencing arguments but ultimately found no prejudice.
Id. at *140-45, 2021 WL 5411080, at *43-44. The lower
court affirmed the findings and new sentence. Id. at *166,
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Opinion of the Court
2021 WL 5411080, at *50. We then granted review of the
following issue:
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?
United States v. Witt, 82 M.J. 424, 424-25 (C.A.A.F. 2022)
(order granting review).
Appellant argues that the lower court erred when it
found that trial counsel’s improper argument did not
constitute prejudice. Brief for Appellant at 18, United
States v. Witt, No. 22-0090 (C.A.A.F. Aug. 5, 2022). We
answer the granted issue in the negative and affirm the
decision below.
I. Background
The Underlying Offenses
The genesis of the instant case stems from the murders
of Senior Airman A.S. and his wife, J.S., and the attempted
murder of Senior Airman J.K. by Appellant in 2004.
Appellant and the couple were friends until he attempted
to kiss J.S. After being told by his wife about the attempted
kiss, A.S. and his friend 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, drove to A.S.’s house where A.S., J.S., and J.K.
were located, and stabbed all three, making sure not to
“leave any evidence” or “witnesses.”
The Sentence Rehearing
At the rehearing on Appellant’s sentence in 2018, trial
counsel asked the panel variations of the following: “[w]hat
will you stand for”; “[w]here will you draw the line”; “what
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Opinion of the Court
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.
Defense counsel objected only twice during arguments.
The first objection was made near the end of trial counsel’s
two-hour argument, when defense counsel objected to trial
counsel comparing Appellant’s prison conditions to the
surviving victim’s future life. 1 The second objection was
made almost immediately after the first, with defense
counsel objecting to trial counsel’s asking the panel “what
risk will you accept on someone else’s behalf?” The military
judge overruled both objections. The panel deliberated for
approximately eight hours before returning a sentence of
life without the possibility of parole.
II. Discussion
Appellant argues that trial counsel acted improperly
when he asked the panel questions such as (1) “what will
you stand for”); (2) “[w]here will you draw the line”); and
“[w]hat risk will you accept on someone else’s behalf.”
Appellant’s theory is that these comments asked the panel
members to consider what others would think of them
based on their sentencing decision, which is improper
under this Court’s precedent in United States v. Norwood,
81 M.J. 12, 19 (C.A.A.F. 2021).
The Government’s principal response is that trial
counsel was not asking the panel members to consider how
others would perceive them but instead asking them to act
as the conscience of the community in making their
decision. The Government asserts that the United States
Courts of Appeals for the Fifth, Sixth, Eighth, Ninth, and
Eleventh Circuits have all held that arguments appealing
1 The content of this comment is not before us on appeal.
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United States v. Witt, No. 22-0090/AF
Opinion of the Court
to the jury to act as the conscience of the community are
permissible so long as the comments are not intended to
inflame the passions of the jury. 2
“Improper argument involves a question of law that this
Court reviews de novo.” United States v. Frey, 73 M.J. 245,
248 (C.A.A.F. 2014). “The legal test for improper argument
is whether the argument was erroneous and whether it
materially prejudiced the substantial rights of the
accused.” Id. (internal quotation marks omitted) (citation
omitted). Because defense counsel failed to object to the
arguments at the time of trial, we review for plain error. 3
United States v. Rodriguez, 60 M.J. 87, 88 (C.A.A.F. 2004).
The standard for plain error review requires that: “(1) an
error was committed; (2) the error was plain, or clear, or
obvious; and (3) the error resulted in material prejudice to
substantial rights.” United States v. Maynard, 66 M.J. 242,
244 (C.A.A.F. 2008) (internal quotation marks omitted)
(citation omitted). The burden lies with Appellant to
establish plain error. Id.Even were we to conclude that prosecutorial misconduct
occurred, relief is merited only if that misconduct “actually
impacted on a substantial right of an accused (i.e., resulted
2 See United States v. Ebron, 683 F.3d 105, 146 (5th Cir.
2012); United States v. Alloway, 397 F.2d 105, 113 (6th Cir.
1968); United States v. Johnson, 968 F.2d 768, 770 (8th Cir.
1992); United States v. Koon, 34 F.3d 1416, 1444 (9th Cir. 1994),
aff’d in part and rev’d in part, 518 U.S. 81 (1996); United States
v. Bailey, 123 F.3d 1381, 1401 (11th Cir. 1997).
3 Appellant concedes in his brief that trial defense counsel
never objected to trial counsel’s statements regarding the
members’ personal and professional reputations. But Appellant
argues trial defense counsel did object to trial counsel’s
statements concerning the panel members’ responsibility for
future harm. We disagree. Trial defense counsel’s only objection
was: “Improper Argument. There is no evidence of future
dangerousness in this case. It is not an aggravator.” This
objection concerns only the sufficiency of the evidence to support
trial counsel’s argument. The objection does not concern the
general appropriateness of the argument, which is the subject of
the assigned issue.
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United States v. Witt, No. 22-0090/AF
Opinion of the Court
in prejudice).” United States v. Fletcher, 62 M.J. 175, 178
(C.A.A.F. 2005) (internal quotation marks omitted)
(citation omitted). “[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) (internal
quotation marks omitted) (citation omitted). “Where
improper argument occurs during the sentencing portion of
the trial, we determine whether or not we can be confident
that [the appellant] was sentenced on the basis of the
evidence alone.” Frey, 73 M.J. at 248 (alteration in original)
(internal quotations omitted) (citation omitted).
Here, we need only address the third element of plain
error because, even assuming error, we see no evidence
that the trial counsel’s arguments resulted in material
prejudice to any of Appellant’s substantial rights. In
assessing prejudice in cases of prosecutorial misconduct,
we have looked at three factors: “(1) the severity of the
misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting
the conviction.” Fletcher, 62 M.J. at 184. In Fletcher we
made no determinations regarding how much weight to
give each factor. However, in United States v. Halpin, we
found that the third factor so overwhelmingly favored the
government it was sufficient to establish lack of prejudice.
71 M.J. 477, 480 (C.A.A.F. 2013).
Here, as in Halpin, we find the weight of the evidence
supporting the conviction strong enough to establish a lack
of prejudice in and of itself. Given the charges for which
Appellant was convicted there were three sentencing
options for the panel to choose from: (1) death, (2) life
without the option of parole, and (3) life with the option of
parole. Article § 118, UCMJ, 10 U.S.C. § 918 (2000);
Manual for Courts-Martial, United States pt. IV,
para.43.e.(1) (2000 ed.) (MCM). The military judge
instructed the panel prior to their deliberation that “a
death sentence may not be adjudged unless all of the court
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Opinion of the Court
members find, beyond a reasonable doubt, that one or more
aggravating factors existed,” and “may not adjudge a
sentence of death unless [the panel] unanimously find[s]
that any and all extenuating and mitigating circumstances
are substantially outweighed by any aggravating
circumstances.”
The Government contends that a sentence of life
without the possibility of parole at a minimum was a
“foregone conclusion,” and thus regardless of any improper
argument, the panel would have reached the same result.
Appellant argues, however, that the panel’s imposition of a
sentence of life without parole was not supported when
taking into consideration the many mitigating factors he
presented, 4 his rehabilitative potential, and defense
counsel’s request that the panel choose the sentence
offering Appellant the possibility of redemption—in
addition to the fact that the option of life with parole was
available to the panel.
We reject both arguments. It is unquestionable that
throughout his argument, trial counsel’s singular and
unambiguous goal was to obtain a sentence of death.
Additionally, the evidence of the crimes for which
Appellant was convicted supported a death sentence.
Appellant confessed to a set of incredibly vicious and
deliberate stabbings resulting in the death of a young
married couple and permanent injury to the third victim.
Yet despite trial counsel’s request and the nature of
Appellant’s crimes, the panel unanimously sentenced
Appellant to life without parole, suggesting that they
believed the aggravating circumstances were substantially
outweighed by the extenuating and mitigating
circumstances. True, we can never know what exactly is in
4 Appellant listed twenty-six mitigating factors which
include such things as Appellant’s lack of prior criminal history,
positive enlisted performance reports, his upbringing (which
was influenced by mental health disorders in relatives and by
relatives’ addictive disorders), his schizotypal personality
disorder, and his remorse for his crimes.
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United States v. Witt, No. 22-0090/AF
Opinion of the Court
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.
III. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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United States v. Witt, No. 22-0090/AF
Judge HARDY, concurring in the judgment.
I concur with the Court’s ultimate conclusion that trial
counsel’s sentencing argument did not result in material
prejudice to any of Appellant’s substantial rights. The
majority arrives at that conclusion by faithfully applying
this Court’s precedents assessing whether trial counsel’s
improper comments at sentencing prejudiced Appellant. I
write separately to express my view that those precedents
are too permissive of improper argument at sentencing. In
an appropriate case, I believe that we should reevaluate
our approach to assessing prejudice from such errors.
The Court first developed the factors for assessing
prejudice used today in United States v. Fletcher, a case
addressing improper argument at the findings stage. 62
M.J. 175, 184 (C.A.A.F. 2005). In United States v. Erickson,
this Court repurposed the Fletcher factors to assess
prejudice from improper sentencing argument. 65 M.J.
221, 224 (C.A.A.F. 2007). As I believe this case illustrates,
the Fletcher factors are ill suited for use at sentencing
because they do not orient us toward our stated goal of
determining “ ‘whether or not we can be confident that [the
appellant] was sentenced on the basis of the evidence
alone.’ ” United States v. Witt, __ M.J. __, __ (6) (C.A.A.F.
2023) (alteration in original) (quoting United States v. Frey,
73 M.J. 245, 248 (C.A.A.F. 2014)).
As modified for the sentencing context, the Fletcher
factors instruct a reviewing court to weigh three
considerations: (1) the severity of the misconduct; (2) the
curative measures taken, if any; and (3) the weight of the
evidence supporting the adjudged sentence. Erickson, 65
M.J. at 224-26. In the past, this Court has often placed
significant weight on the third Fletcher factor—the weight
of the evidence supporting the sentence. For example, in
Erickson, we found no prejudice in a case where trial
counsel erred by comparing the appellant to Adolph Hitler,
Saddam Hussein, and Osama bin Laden and describing
him as a demon belonging in hell. Id. at 222, 226. Noting
that the appellant’s criminal acts were “particularly
egregious,” the Court held that the evidence supported the
conclusion that the appellant would have received the
United States v. Witt, No. 22-0090/AF
Judge HARDY, concurring in the judgment
same sentence irrespective of trial counsel’s improper
comments. Id. at 225-26.
Similarly, in United States v. Halpin, the appellant
argued that trial counsel committed reversible error when
he suggested during his sentencing argument that the
appellant wanted his wife to die even though this
assertion—as well as several others made by trial
counsel—was not supported by any evidence in the record.
71 M.J. 477, 481-82 (C.A.A.F. 2013) (Erdmann, J., with
whom Effron, S.J., joined, dissenting) (describing the
alleged errors). Jumping straight to prejudice and the
Fletcher factors, the Court concluded that “the third
Fletcher factor weighs so heavily in favor of the
Government that we are confident that Appellant was
sentenced on the basis of the evidence alone.” Id. at 480.
Finally, in Frey, the Court agreed with the lower court
that trial counsel erred when he urged the panel members
to apply common sense and their knowledge of the “ways of
the world”—rather than any evidence in the record—to
sentence the accused based on a risk of recidivism through
serial molestation. 73 M.J. at 249. Applying the Fletcher
factors, the Court found that “although the first two factors
favor Appellant, the weight of the evidence supporting the
sentence adjudged is such that we can be ‘confident that
Appellant was sentenced on the basis of the evidence
alone.’ ” Id. (quoting Halpin, 71 M.J. at 480).
In my view, this Court’s heavy reliance on the third
Fletcher factor is problematic. Weighing the evidence
supporting a conviction makes sense when there has been
improper argument during the findings stage because
there may be overwhelming evidence of guilt beyond a
reasonable doubt despite the improper argument. But as
the Court recently recognized in United States v.
Edwards—a case dealing with the similar problem of
erroneously admitted sentencing materials—prejudice
tests developed in the findings context are not always well
suited to sentencing. 82 M.J. 239, 247 (C.A.A.F. 2022). An
appellate court faces a more challenging task when asked
to determine whether an error had a substantial influence
on the sentence (where there is a broad spectrum of lawful
2
United States v. Witt, No. 22-0090/AF
Judge HARDY, concurring in the judgment
punishments), as opposed to the finding (where there is
only a binary choice between guilty and not guilty). Id.Sentencing requires balancing multiple considerations to
craft a punishment that best serves the varied purposes of
sentencing. See Rule for Courts-Martial (R.C.M.) 1002(f)
(2019 ed.) (explaining that in imposing a sentence, the
court-martial shall consider, inter alia, the circumstances
of the offense and the history of the accused; the impact of
the offense on others and on the command of the accused;
rehabilitation; deterrence; and the protection of others).
The Fletcher factors do not account for these nuances,
especially when significant weight is placed on the third
factor.
In applying the Fletcher factors to sentencing errors,
the Court seems to be asking whether the adjudged
sentence was appropriate for the committed offense despite
the improper argument. But this is a different question
than the one we purport to be answering: whether we are
confident that Appellant was sentenced based on the
evidence alone. And of course, this Court—unlike the
service courts—has no authority to engage in sentence
appropriateness. See United States v. Fee, 50 M.J. 290, 291
(C.A.A.F. 1999) (“Congress has vested the responsibility for
determining sentence appropriateness . . . in the Court[s]
of Criminal Appeals, not in this Court.”). Employing a test
that focuses on whether the evidence supports the
sentence, despite the presence of error, arguably
transcends those jurisdictional limitations. This Court’s
precedents emphasizing the third Fletcher factor only
exacerbate that concern.
In the case at hand, I believe that trial counsel’s
comments amounted to obvious error, for the reasons
explained by Chief Judge Ohlson. Witt, __ M.J. at __ (3-4)
(Ohlson, C.J., dissenting). I add only that I am dubious of
the Government’s defense of these remarks as permissible
appeals for the panel to speak as the “conscience of the
community.” Although the Government cites various cases
from the federal courts of appeals in support of this
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United States v. Witt, No. 22-0090/AF
Judge HARDY, concurring in the judgment
argument, 1 I do not find those cases—which arise solely
from the civilian context—to be persuasive in the military
context.
As this Court recently recognized in United States v.
Norwood, trial counsel commits plain error by pressuring
panel members to sentence the defendant based on how
their fellow servicemembers will view the sentence they
adjudge. 81 M.J. 12, 21 (C.A.A.F. 2021). This result makes
sense because this type of sentencing argument invokes the
specter of unlawful command influence when presented in
a court-martial. In this case, trial counsel asked the panel
members, “What will your sentence stand for? What will
your sentence say?” Even if these comments can be
characterized as asking the panel to speak as the
conscience of the community, they also implicitly ask panel
members to consider how the adjudged sentence will be
perceived by their chain of command and encourage them
to impose a harsher sentence for the sake of their own
careers. These arguments have no place in the military
justice system.
1 See, e.g., United States v. Ebron, 683 F.3d 105, 145-46 (5th
Cir. 2012) (deeming the prosecution’s question, “ ‘[w]hat
message would a life sentence send to [the defendant’s] crew and
the prison community’ ” a permissible appeal to act as the
conscience of the community where the defendant, already
imprisoned for a separate murder, killed a fellow inmate);
United States v. Alloway, 397 F.2d 105, 113 (6th Cir. 1968)
(finding the prosecution’s request that the jury “ ‘speak out for
the community’ ” to be a permissible “conscience of the
community” argument); United States v. Shirley, 435 F.2d 1076,
1079 (7th Cir. 1970) (finding the closing argument not improper
where the prosecution noted a rise in car thefts and increasing
concern surrounding car thefts); United States v. Bailey, 123
F.3d 1381, 1401 (11th Cir. 1997) (finding the closing argument
permissible where the prosecution asked the jurors to be people
of dedication, judgment, integrity, and courage in rendering a
decision); but see United States v. Johnson, 968 F.2d 768, 770-72
(8th Cir. 1992) (determining that the prosecution’s request for
the jury to “ ‘stand as a bulwark against’ ” the continuation of
the defendant’s drug dealing was an inflammatory and improper
appeal to be the conscience of the community).
4
United States v. Witt, No. 22-0090/AF
Judge HARDY, concurring in the judgment
Nevertheless, due to the particular facts of this case, if
we apply the Fletcher factors as our precedents dictate,
Appellant cannot prevail. 2 Appellant committed gruesome
crimes, and the panel members rejected the Government’s
explicitly requested sentence of death. In addition, rather
than a broad spectrum of lawful punishments, Appellant
faced only three possible sentences—death, life
imprisonment without the possibility of parole, or life
imprisonment with the possibility of parole. Article 118,
UCMJ, 10 U.S.C. § 918 (2000); Manual for Courts-Martial,
United States pt. IV, para. 43.e.(1) (2000 ed.). Considering
all these factors, I agree that Appellant has not shown a
reasonable probability that but for trial counsel’s error, his
sentence would have been different.
2 Interestingly, when this Court recently found prejudice
from similar improper sentencing argument in Norwood, it cited
but did not expressly analyze the Fletcher factors. 81 M.J. at
19-21.
5
United States v. Witt, No. 22-0090/AF
Chief Judge OHLSON, dissenting.
Overview
As the United States Air Force Court of Criminal Ap-
peals (CCA) stated in its opinion, the trial counsel in this
highly visible and emotionally charged murder case asked
the panel “members to consider how they would be judged
by others by virtue of the sentence they mete[d] out.”
United States v. Witt, No. ACM 36785 (reh), 2021 CCA
LEXIS 625, at *141, 2021 WL 5411080, at *43 (A.F. Ct.
Crim. App. Nov. 19, 2021) (unpublished) (emphasis added).
In a military environment where the panel members could
not only face social opprobrium from their peers but also
suffer significant professional harm at the hands of their
superiors, this potently toxic argument irredeemably poi-
soned the entire sentencing process. Because the majority
declines to order a new, untainted sentencing proceeding, I
respectfully dissent.
Instances of Prosecutorial Misconduct
As noted by the CCA, during his presentencing
argument the “[t]rial counsel described the members’
obligations in notably personal terms, such as when he
asked the members, ‘From E-6 to O-6, where else in your
career will you have the opportunity to draw the line as an
individual, and as an Airman on what you will allow?’ ” Id.
at *133-34, 2021 WL 5411080, at *40. Trial counsel also
argued as follows:
Members, make no mistake about it; your sen-
tence will send a message. It will send a message
about what you as an individual, and what you as
an Airman will accept. It will—it will tell everyone
where you draw the line, and what you will stand
for. It will. 1
Trial counsel repeated this sentiment in various ways more
than seventy times.
1 I am nonplussed by the Government’s assertion that these
arguments by trial counsel were merely calls for the panel mem-
bers to act as the proverbial conscience of the community when
deciding what sentence to impose. As can be seen, the plain lan-
guage of the trial counsel’s statements refutes that claim.
United States v. Witt No. 22-0090/AF
Chief Judge OHLSON, dissenting
As if this improper line of sentencing argument were
not egregious enough, the trial counsel also essentially told
the panel members that they would be accepting personal
responsibility for any future victims of Appellant if they
failed to sentence him in accordance with the Government’s
wishes. As one example, trial counsel’s sentencing argu-
ment contained the following line: “What risk will you ac-
cept on another family’s behalf?” As the CCA correctly con-
cluded: “While Appellant’s future risk of misconduct . . .
was an appropriate consideration in fashioning Appellant’s
sentence, the suggestion that the members would be per-
sonally responsible for any such misconduct was not.” Id.
at *142, 2021 WL 5411080, at *43.
As can be seen, trial counsel engaged in flagrant and
egregious improper argument. And as demonstrated below,
I strongly believe that the majority’s prejudice analysis is
fundamentally flawed.
The Fletcher Factors
In seeking to assess the prejudicial effect of the trial
counsel’s grossly inappropriate arguments, the majority re-
lies on the factors derived from United States v. Fletcher,
62 M.J. 175, 184-85 (C.A.A.F. 2005). These factors include
the severity of the misconduct, the curative measures
adopted, and the weight of the evidence supporting the sen-
tence. However, in concluding that under Fletcher Appel-
lant suffered no prejudice at the hands of the Government
because of the overwhelming weight of the sentencing evi-
dence, the majority fails to adequately take into account
three essential points.
First, this Court’s recent observation in United States v.
Edwards, 82 M.J. 239, 247 (C.A.A.F. 2022), about the prej-
udice test for improperly admitted sentencing evidence
holds equally true for the Fletcher prejudice test applied to
improper sentencing arguments. Specifically, the Court
stated:
Before analyzing the individual factors, it is
worth noting that this test—which the Court has
applied to errors that occur during both the find-
ings and sentencing phases of the court-martial—
is considerably more difficult to apply to
2
United States v. Witt No. 22-0090/AF
Chief Judge OHLSON, dissenting
sentencing. Although there is a binary decision to
be made with respect to the findings (guilty or not
guilty), there is a broad spectrum of lawful pun-
ishments that a panel might adjudge. Complicat-
ing matters further, it is much more difficult to
compare the “strengths” of the competing sentenc-
ing arguments than it is to weigh evidence of guilt.
Proof of guilt can be overwhelming even without
the erroneously admitted evidence, but there is no
analogous analysis for determining the appropri-
ate sentence. It is thus harder for the Government
to meet its burden of showing that a sentencing
error did not have a substantial influence on a
sentence than it is to show that an error did not
have a substantial influence on the findings.
Id.Second, in a case such as this one, the severity of the
misconduct by the government—as captured by the initial
Fletcher factor—may be so pernicious and so pervasive and
so ponderous that the scales of justice can never be righted
by the other Fletcher factors.
And third, the multiple Fletcher factors can be distilled
to a single passage from that opinion: “[P]rosecutorial mis-
conduct by a trial counsel will require reversal when the
trial counsel’s comments, taken as a whole, were so dam-
aging that we cannot be confident that the members [sen-
tenced] the appellant on the basis of the evidence alone.”
Fletcher, 62 M.J. at 184 (emphasis added).
Analysis
Trial counsel’s conduct—“[a]sking members to consider
how they would be judged by others by virtue of the sen-
tence they mete out”—grossly violated fundamental princi-
ples of proper sentencing argument. Witt, 2021 CCA LEXIS
625, at *141, 2021 WL 5411080, at *43; see also United
States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (Members
must make their sentencing decision based upon “cool,
calm consideration of the evidence and commonly accepted
principles of sentencing.” (citation omitted) (internal quo-
tation marks omitted)). A trial counsel’s sentencing argu-
ment must be limited to “the evidence of record, as well as
all reasonable inferences fairly derived from such evi-
dence.” Baer, 53 M.J. at 237. Sentencing must be about an
3
United States v. Witt No. 22-0090/AF
Chief Judge OHLSON, dissenting
accused and his crimes, not about the panel members and
their desire for public approval and self-promotion. United
States v. Shamberger, 1 M.J. 377, 379 (C.M.A. 1976) (not-
ing that trial counsel are prohibited from encouraging
panel members “to cast aside the objective impartiality de-
manded of [them] as . . . court member[s] and judge the is-
sue from the perspective of personal interest” (citation
omitted) (internal quotation marks omitted)). Here, the
trial counsel’s repetitive and heavy-handed appeal to self-
interest contaminated the sentencing proceedings beyond
redemption.
Indeed, it is instructive to ponder the following point.
During voir dire, if any of the panel members had stated
that—when deciding upon the severity of the sentence to
adjudge in this case—they would consider the effect a par-
ticular sentence could have on their personal reputation
and military career, that panel member would have been
deemed manifestly unqualified to sit on the court-martial.
See United States v. Youngblood, 47 M.J. 338, 342
(C.A.A.F. 1997) (holding “that it was ‘asking too much’ of
[two panel members] to expect them to impartially adjudge
an appropriate sentence without regard for its potential
impact on their careers” (citations omitted)); see also
United States v. Wood, 18 C.M.A. 291, 296, 40 C.M.R. 3, 8
(1969). And yet here—without so much as a simple curative
instruction—the trial counsel essentially implored all of
the panel members to adopt that precise approach and the
majority fails to find sufficient prejudice to merit a new
sentencing proceeding. In the recent case of United States
v. Norwood, 81 M.J. 12, 21 (C.A.A.F. 2021), we held that it
was reversible error for trial counsel to “pressure[] the
[panel] members to consider how their fellow servicemem-
bers would judge them and the sentence they adjudged in-
stead of the evidence at hand.” I cannot see any meaningful
distinction between that case and the instant case, and the
majority opinion offers none. Thus, the result in this case
should be the same result as in Norwood—setting aside the
sentence and authorizing a sentence rehearing.
Even in a case such as this one where the offenses are
so heinous and the outcome of the sentencing proceeding is
seemingly so obvious, the fundamental fairness of the
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United States v. Witt No. 22-0090/AF
Chief Judge OHLSON, dissenting
court-martial process matters. Deeply. And by discounting
that principle in the instant case by finding “no prejudice”
when the Government has employed such flagrant and
noxious tactics, the majority’s decision bodes ill for how
trial counsel will think they can conduct themselves in fu-
ture sentencing proceedings.
Conclusion
The prosecution in this court-martial repeatedly ex-
horted the panel members to disregard the objective impar-
tiality demanded of them under the law by urging them to
factor into their sentencing decision their own personal and
professional interests. Such misconduct by the Govern-
ment irredeemably contaminated the entirety of the sen-
tencing process. Because the majority has declined to take
the necessary step of ordering a new sentencing proceeding
in this case, I respectfully dissent.
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