Counsel may recommend a specific lawful sentence. R.C.M. 1001(g)
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Counsel need to remember that the sentence is not about whether the accused stays in the service or not, but whether the accused deserves a punitive discharge.
United States v. Motsinger , 34 M.J. 255 (C.M.A. 1992). Trial counsel improperly blurred distinction between a punitive discharge and administrative separation by arguingwould you really want this individual working for you? I don’t think so. . . . Is this really the individual . . . that we need in the United States Air Force?. Findings Argument (Art and Law)
See also United States v. Ohrt , 28 M.J. 301 (C.M.A. 1989).
Trial counsel may inform members of maximum penalty which court-martial may impose. United States v. Capps , 1 M.J. 1184 (A.F.C.M.R. 1976).
However, trial counsel may not comment onthe average sentence. United States v. Simmons , 31 M.J. 884 (A.F.C.M.R. 1990). Trial counsel improperly explained thataveragesentence was mathematical average between no punishment and the possible maximum punishment.
Defense counsel may argue for a specific sentence. See generally United States v. Goodman , 33 M.J. 84 (C.M.A. 1991).
Counsel may generally argue for any legal sentence regardless of limitations contained in a pretrial agreement. United States v. Rivera , 49 C.M.R. 838 (A.C.M.R. 1975); United States v. Rich , 12 M.J. 661 (A.C.M.R. 1981).
However, counsel may not make misleading arguments. United States v. Cassity , 36 M.J. 759 (N.M.C.M.R. 1992) (finding error in government’s disingenuous argument for leniency as to confinement which was designed to enhance punishment by operation of the pretrial agreement). Trial counsel may not argue for a quantum of punishment greater than that court-martial may adjudge. R.C.M. 1001(g).
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