Sentencing in Military Court
Below is the transcript of the video: Sentencing in Military Courts-Martial Cases
My name is Michael Waddington, and I’m a court-martial defense attorney. In this video, I want to talk to you about sentencing proceedings. In military court-martial cases, these proceedings are slightly different from those on the civilian side, both at the federal and state levels. One big thing is that you have a whole proceeding where you’re allowed to call witnesses about your character. You’re allowed to call witnesses to talk about mitigation, things that kind of minimize the offense, and explain why it occurred.
You can call good soldier, good sailor good airmen, type witnesses, good marine type witnesses, and you’re able to present all these types of people along with your complete service record letters of support, you can present a substantial amount of evidence to the judge or jury, depending on who’s doing your sentencing that can show you as a complete total person in the military, the sentencing proceedings are based on this idea of rehabilitation. So that means they look at your past, your present situation, your crimes, what’s in the best interest of you, the military, and society.
If you do it properly, you can present your client in a way that humanizes that client that shows their family, their family struggles, whether they have P.T.S.D., from combat or other things, and show them as a total human. And the jury has to then go back if it’s a jury sentencing, and then they have to deliberate and vote on what sentence is really in the best interest of everyone, including you as the accused. So even if you get convicted of a crime, you can make up a lot of ground in the sentencing proceedings. I’m talking about people that have been convicted of crimes and carry 5060 years; going into sentencing, they can end up with a sentence of 20-30 days or no jail time.
These are just examples. I’m just giving you one extreme, or you can walk out of there with a reprimand or even no punishment if you do it right. On the other hand, if you have a lot of bad stuff in your background, if your crimes are very egregious, then you’re going to be on the higher end. But at a minimum, your lawyer should be presenting the evidence to show you as in the best light possible to try to get that sentence as far down as possible so that you don’t go to jail for longer than necessary. The attorney’s experience and credibility make a big difference when it comes to doing sentencing proceedings, both in front of the judge and the jury.
We give them reasons why a lower sentence is in the best interest of everyone involved, rather than just going up there with some emotional plea for mercy. Because military people don’t buy that, in my opinion, they want a reason. So, for example, if you get convicted of stealing lots of money and be or, or theft, or even a sexual assault, and you come in there.
Your lawyer explains your background, who you are, what you did, what you’ve done since then, explains a lack of prior convictions, and then explains what your plans are in the future to get out to do this to do that, and you can recognize your misconduct and then move forward with a concrete plan. The panel will often buy off and give you a sentence that’s more in line with what the defense lawyers want versus the prosecution, who always wants some ridiculously excessive sentence.
The Case in Extenuation and Mitigation. RCM 1001(c). 1. Matters in extenuation. RCM 1001(c)(1)(A).
a) Explains circumstances surrounding the commission of the offense, including those reasons that do not constitute a legal justification or excuse.
b) the In the United States v. Loya, 49 M.J. 104 (1998). Thus, evidence of quality medical care was relevant in extenuation and mitigation for an accused convicted of negligent killing since such evidence might reduce the appellant’s blame.
2. Matters in mitigation. RCM 1001(c)(1)(B).
a) Personal factors concerning the accused introduced to lessen the punishment; e.g., evidence of the accused’s reputation or record in the service for efficiency, fidelity, temperance, courage, etc.
b) In the United States v. Demerse, 37 M.J. 488 (C.M.A. 1993). Counsel should pay particular attention to awards and decorations based on combat service.
c) In the United States v. Perry, 48 M.J. 197 (1998). The C.A.A.F. upheld the military judge’s decision not to instruct the panel that the accused stood to be found liable for $80,000 recoupment by USNA of the accused’s education expenses when separated from service before completing a five-year commitment due to misconduct, as too collateral in this case.
d) the In the United States v. Simmons, 48 M.J. 193 (1998). The military judge’s prohibition on the accused from offering evidence of a civilian court sentence for the same offenses that were the basis of his court-martial was an error. Civilian conviction and sentence for the same misconduct may be aggravating or mitigating, but defense counsel is in the best position to decide.
e) In the United States v. Bray, 49 M.J. 300 (1998). Proper mitigation evidence under RCM 1001(c) included the possibility that the accused suffered a psychotic reaction due to insecticide poisoning. Such evidence might lessen the adjudged sentence and is therefore relevant.
f) Retirement benefits.
(1) In the United States v. Washington, 55 M.J. 441 (2001). At the trial, the accused was a senior airman (E-4) who could retire during her current enlistment. The military judge excluded defense evidence that estimated the accused’s retirement pay if she retired after twenty years in the pay grades of E-4 and E-3. The military judge erred by refusing to admit a summary of expected lost retirement of approximately $240,000.00 if the accused was awarded a punitive discharge.
(2) In the United States v. Boyd, 55 M.J. 217 (2001). The military judge declined to give a requested defense instruction on the loss of retirement benefits resulting from a punitive discharge. The accused had fifteen and a half years of active service. The court held that there was no error in this case, but stated: “we will require military judges in all cases tried after the date of this opinion (10 July 2001) to instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.”
W-26(3) In the United States v. Luster, 55 M.J. 67 (2001). The military judge erred when she prevented the defense from introducing evidence that would show the financial impact of lost retirement resulting from a punitive discharge. The accused had eighteen years and three months of active service. The court cautioned against using the time left until retirement as the basis for deciding whether such evidence should be admitted. The probability of retirement was not remote, and the financial loss was substantial. Compare with In the United States v. Henderson, 29 M.J. 221 (C.M.A. 1989). The military judge correctly denied the defense introduction of financial impact data about the accused’s loss of retirement benefits if reduced in rank or discharged (accused was 3+ years and reenlistment away from retirement eligibility). “[T]he impacts upon appellant’s retirement benefits was not a direct and proximate consequence’ of the bad-conduct discharge.”
(4) In the United States v. Becker, 46 M.J. 141 (1997). The M.J. erred when he refused to allow the accused with 19 years and 8-1/2 months active duty service at the time of court-martial to present evidence in mitigation of loss in retired pay if discharged. “The relevance of evidence of potential loss of retirement benefits depends upon the facts and circumstances of the individual accused’s case.”
(5) In the United States v. Greaves, 46 M.J. 133 (1997). The military judge should give some instructions when the panel asks for direction in the important area of retirement benefits. Accused was nine weeks away from retirement eligibility and did not have to reenlist.
(6) In the United States v. Sumrall, 45 M.J. 207 (1996). The C.A.A.F. recognized the right of retirement-eligible accused to introduce evidence that punitive discharge will deny retirement benefits. With the proper foundation, evidence of potential dollar amount is subject to loss.
(7) In the United States v. Polk, 47 M.J. 116 (1997). No Fifth Amendment due process violation where Master Sergeant lost substantial retired pay due to the bad-conduct discharge. Accused with twenty-three years of service proffered no other evidence of loss of retirement benefits, but in an unsworn statement addressed loss if discharged. D.C. multiplied half of base pay times thirty years to argue severe penalty.
3. Statement by the accused. RCM 1001(c)(2). a) Sworn statement. RCM 1001(c)(2)(B).
(1) Subject to cross-examination by trial counsel, military judge, and members.
(2) Rebuttable by:
(a) Opinion and reputation evidence of character for untruthfulness. RCM 608(a).
(b) Evidence of bias, prejudice, or any motive to misrepresent. RCM 608(c).
(c) Extrinsic evidence of prior inconsistent statements. RCM 613.
b) Unsworn statement by accused. RCM 1001(c)(2)(C). W-27
(1) May be oral, written, or both.
(2) May be made by accused, counsel, or both.
(3) Matters covered in unsworn statement.
(a) In the United States v. Grill, 48 M.J. 131 (1998). The right of an accused to make a statement in allocution is not wholly unfettered but must be evaluated in the context of statements in specific cases. It was an error to sustain the government’s objection to the accused making any reference to his co-conspirators being treated more leniently by civilian jurisdictions (i.e., not prosecuted, deported, probation). “The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution.”
(b) In the United States v. Jeffery, 48 M.J. 229 (1998). Thus, an accused’s rights in allocution are broad but not wholly unconstrained. However, the mere fact that an unsworn statement might contain otherwise inadmissible evidence – e.g., the possibility of receiving an administrative rather than punitive discharge – does not render it inadmissible.
(c) In the United States v. Britt, 48 M.J. 233 (1998). There are some limits on an accused’s right of allocution, but “comments that address options to a punitive separation from the service . . . are not outside the pale.” Error for the military judge to redact the portion of the accused’s unsworn statement telling the panel that the commander intended to discharge him administratively if a court-martial imposed no punitive discharge.
(d) In the United States v. Tschip, 58 M.J. 275 (2003). Appellant, in his unsworn, told the panel, “I know my commander can discharge me even if I do not receive a bad conduct discharge today.” The military judge advised the panel that an unsworn was an authorized means of conveying information; they were to give the appellant’s comments regarding an administrative discharge the consideration they believed it was due, to include none; administrative discharge information is generally not admissible at trial, and they were free to disregard any reference to the appellant’s comment made by counsel. The court held that the instruction was appropriate because the judge placed the appellant’s comments “in context” for the decision-makers. The court noted that the instruction was proper in light of the appellant’s “unfocused, incidental reference to an administrative discharge.” The court left for another day whether it would be proper if the unsworn was specific and focused.
(e) In the United States v. Sowell, 62 M.J. 150 (2005). A military judge’s decision to restrict an accused’s sentencing statement is reviewed for abuse of discretion. In the following In the United States v. Grill, 48 M.J. 132, although the right of allocution is “generally considered unrestricted,” it is not “wholly unrestricted.” However, C.A.A.F. distinguished this case, citing the government’s argument on findings that opened the door to proper rebuttal during the appellant’s unsworn statement on sentencing. The court focused on the fact that trial counsel was aware of FC3 Elliott’s acquittal the previous week. Her references to FC3 Elliott as a co-conspirator, implying criminal liability, during her findings argument indicated that FC3 Elliott was guilty of the same offense as appellant and therefore had a motive to lie.
(f) In the United States v. Johnson, 62 M.J. 31 (2005). Before trial, the appellant took a privately administered polygraph examination arranged by the defense. The examiner concluded that the appellant was not deceptive when he denied knowing that he transported marijuana. During the sentencing hearing, he sought to refer to his “exculpatory” polygraph test during his unsworn statement. The military judge ruled that the test results were inadmissible. The C.A.A.F. found that polygraph evidence squarely implicates its admonition against impeaching or relitigating the verdict on sentencing. Furthermore, the court was not persuaded that exculpatory polygraph information qualifies as extenuation, mitigation, or rebuttal under R.C.M. 1001(c).
(g) In the United States v. Barrier, 61 M.J. 482 (2005). The military judge did not err when, over defense objection, he gave the “Friedmann” instruction. During the appellant’s unsworn statement, the military judge called the panel members’ attention to the sentence received in a similar unrelated case. The military judge gave an instruction that essentially told the panel members that part of the accused’s unsworn statement was irrelevant and that they should not consider it in determining an appropriate sentence.
(4) When the accused makes an unsworn statement, he does not become a witness:
(a) Not subject to cross-examination. See In the United States v. Grady, 30 M.J. 911 (A.C.M.R. 1990) (noting that it was improper for M.J. to question the unsworn accused).
(b) In the United States v. Martinsmith, 42 M.J. 343 (1995). Thus, there was no prejudicial error where M.J. did not permit the accused in an unsworn statement to respond to the member’s question concerning the money’s whereabouts, which the accused admitted stealing. Further, the judge did not abuse discretion in denying the defense request at that point to reopen its case to introduce a “sworn statement” of the accused.
(c) In the United States v. Satterley, 55 M.J. 168 (2001). Defense counsel requested to reopen the defense case to answer a court member’s question via an unsworn statement by the accused. The military judge denied the request but stated he would allow the defense to work out a stipulation of fact or allow the accused to testify under oath. Thus, the court concluded that the military judge did NOT abuse his discretion in refusing to allow the accused to make an additional, unsworn statement. The court did note, however, that “there may be other circumstances beyond legitimate surrebuttal which may warrant an additional unsworn statement . . . . Nevertheless, whether such circumstances exist in a particular case is a matter properly imparted to the sound discretion of the trial judge.”
(d) In the United States v. Adame, 57 M.J. 812 (N-M. Ct. Crim. App. 2003). Error for the military judge to conduct an extensive inquiry regarding the accused’s desire for a punitive discharge in his unsworn where inquiry got into attorney-client communications. The court described M.J.’s inquiry as “invasive,” however, found no prejudice.
(5) In the United States v. Friedmann, 53 M.J. 800 (A.F. Ct. Crim. App. 2000), pet. denied, 54 M.J. 425 (2001). Proper for the military judge to provide sentencing instruction to clarify the member’s comments in the accused’s unsworn statement.
c) The defense may not present evidence or argument that challenges or re- litigates the prior guilty findings of the court.
d) If the accused made an unsworn statement, the government may only rebut statements of fact.
(1) In the United States v. Manns, 54 M.J. 164 (2000). “I have tried throughout my life, even during childhood, to stay within the laws and regulations of this country” was held to be a statement of fact and could be rebutted by evidence of the accused’s admission to marijuana use.
(2) In the United States v. Willis, 43 M.J. 889 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 (1997). The government allowed to dispute the accused’s expression of remorse with inconsistent statements on the psychological questionnaire and audiotape of a telephone message to the victim’s brother.
(3) In the United States v. Cleveland, 29 M.J. 361 (C.M.A. 1990). “Although I have not been perfect, I feel that I have served well and would like an opportunity to remain in the service. . . .” The court determined that the statement was more like an opinion, “indeed, an argument;” therefore, not subject to rebuttal.
(4) In the United States v. Thomas, 36 M.J. 638 (A.C.M.R. 1992). Accused’s unsworn statement commented on his upbringing, pregnant girlfriend, reasons for enlisting in the Army, and the extenuating circumstances surrounding his offenses. The accused also apologized to the Army and the victim. The court held that it was an improper rebuttal to have the 1SG testify that the accused was not truthful since the character for truthfulness was not at issue.
e) Relaxed rules of evidence. RCM 1001(c)(3). In the United States v. Safelite, 59 M.J. 270. The rules of evidence apply at sentencing, but the M.J. may relax the rules of evidence. However, a relaxation of the rules goes more toward whether evidence is reliable and authentic; otherwise, inadmissible evidence is still not admitted (citing In the United States v. Boone, 49 M.J. 187, 198 n.14 (1998)). See also In the United States v. Steward, 55 M.J. 630 (N-M. Ct. Crim. App. 2001) (observing that relaxed rules of evidence are not limited to only documentary evidence).