Bringing the commander in the courtroom via argument
Closing Arguments Examples: Kick-Ass Closing Arguments Part 1: Closing Argument Template
United States v. Mallett, 61 M.J.761 (A.F. Ct. Crim. App.2005). Trial counsel’s sentencing argument injected unlawful command influence into the proceedings because the TC referred to commanders in her argument. Specifically, the TC referred to “commander’s calls” where the commander “would warn us to stay away . . . not to use drugs.” After stating that the commander could not impose any particular punishment, but could only send the charges to court-martial, the TC then posited, “what would a commander say to get his unit’s attention and say, ‘I mean business about drugs,’ if he had the authority to be
Military Sexual Assault Defenses: Mistake of Fact Explained by a Military Defense Lawyer
the judge and jury in a case where you are, in essence, the jury deciding this?” The TC concluded that, a sentence that would “get people’s attention” is “18 months [of] confinement and a bad conduct discharge.” Trial defense counsel did not object to the argument. The court held that the TC‘s comments were improper under R.C.M. 1001(g), which expressly prohibits making reference to a convening authority or command policy in sentencing arguments and amounted to plain error, despite the lack of defense objection at trial. The court found that the appellant suffered prejudice and so set aside the sentence.
United States v. Sparrow, 33 M.J. 139 (C.M.A. 1991). The trial counsel argued that “General Graves has selected you. He said, “Be here. Do it. You have good judgment. I trust you. I know you’ll do the right thing.” The defense did not object. The court said that if there was UCI, it did not affect the proceeding. Through the exercise of rank in the deliberation room.
Improper for senior ranking court members to use rank to influence vote within the deliberation room, e.g., to coerce a subordinate to vote in a particular manner. Discussion, Mil. R. Evid. 606.
United States v. Accordino, 20 M.J. 102 (C.M.A. 1985) (allegation that senior officer cut off discussion by junior members, remanded to determine if senior officer used rank to “enhance” an argument).
United States v. Lawson, 16 M.J. 38, 41 (C.M.A. 1983). Straw votes are informal votes taken by members to see where they stand on the issues. They are not authorized by the RCMs or the UCMJ but are not specifically prohibited by these sources. However, the use of straw votes allows rank to enter the courtroom because it works against the anonymity rules
United States v. Reynolds, 40 M.J. 198 (C.M.A. 1994). A split court could not agree whether the president of the panel (a major) made remarks (calling other members “captain” and using a tone of voice to impress inferiority of their rank) amounted to UCI.