Argument of Military Counsel on Findings, Sentence and Motions: Limitations and Abuses

• Author: By Lieutenant Commander Gardiner M. Haight
• Pages: 03

1. INTRODUCTION

   An undisputed, and most valuable, right of counsel in adversary proceedings is the right to present argument to the triers of the facts. Of course. the value of oral argument is in direct proportion to the skill of the advocate presenting it, but even when employed by the novice it is an effective tool in the trial lawyer's kit. There is no way to empirically ascertain the number of case8 in which the forensic ability of counsel has been the factor which tipped the scales of justice in favor of his client or, conversely, the number of cases in which justice was not done because of inept argument. Suffice it to say, the fact that such can happen en. hances rather than diminishes the value and importance of oral argument.

   Judicial recognition was given to the value of argument of de. fense counsel in United State8 v. Siremore.' when Chief Judge Quinn of the United States Court of Military Appeals said:

   The right-and duty-f defense eounael to pmaent a dosing argument is not ta be lightly brushed aside. Whew the tale 18 ieng and hotly am. tented. and a planned strategy has been pursued by defense. the eioaing argument may be C N C ~ ~

   Out of the wealth of testimony adduced, defeme must bdng together the portions that are favorable to the aecuaed and present thsm in a light that will appear mast convincing to the trierrof fact. If thin is net done by defense coun~el, then is L danger that the court may not understand 01 appmeiate the defeme theon. It is not exaggeration to SPY that many criminal casea are yon for the reeuaedin ths course of dosing argument.*In order for counsel to consider himself proficient in this field it is by no means enough that he should be able to speak clearly

   * This article was adapted from a the& presented to The Judge Advwate General's School. U.S. Amy, Charlothwiile, Virginia. while the author was 8 member of the Ninth Career Course. The Opinions and eoneiuaiona pre. seated herein are those of the author and do not necewsriiy represent the views of The Judge Advaeste Generri'a School or any other governments1 agency.

   *+Legal Specialist. U.S. Navy; Member, Staff and Faculty, U.S. Naval Justice Sehwi, Newport, Rhode Island: LL.B.. 1854, University sf Virginis: Membr Of the Virginia State Bar. and the bars of the U.S. Court of Military Appesls and US

   Supreme Court.

   L z USCMA 672, io CMR 70 (is6a).%Id. at 514.10 CMR at 12.*co 4IWB 51)

   and well. In addition to this he must understand, and mold his argument to conform to, the rules governing this aspect of his work. It ia the principal purpose of this article to examine and delineate these "ground rules" of oral argument.

   In military procedure, argument to the "jury"-the members of the court-martial-takes place after both sides have rested and prior to instructions by the law offieer.3 At this stage of the prweedings the court has before it, depending upon the skill of counsel presenting the case, either an orderly and logical unfalding of the facts of the case or a jumble of matter which it must unravel in its search for the truth. In either case, and more particularly the latter, the argument of counsel is of inestimable value in convincing the court that the array of evidence supports his contentions. It is not necessary for counsel to attempt to overwhelm the court with bombast. oratory or theatrics. Many counsel have found to their dismay that histrionics are calculated to dissuade, rather than persuade, the knowledgeable officers composing B court-martial. It is when counsel veers from anorderly, straight-forward, logical and sincere presentation that he commits error by falling into the traps that await the rabid partisan. For while counsel does have a right to argue, this right does not extend to an absolute freedom of expression.

   The rules governing argument might appear simple on their face, but their practical application in the trial forum is often complex. It is the heat of litigation which causes the transgression that results in error.

   The trial counsel may waive the right to argue to the court. He has the option of presenting argument or remaining silent and resting on the evidence he has adduced.' Except in the most unusual case, the defense counael does not have such a choice and is subject to judicial rebuke should he fall to support the eauBe of his client to the fullest extent of his forensic ability.& Judge Latimer said this regarding the duty of defense coun8el to present argument :

   While he who defends must prepare, wmult, examine and ero~s-examine oppaaing witneaw, and, if possible. produce evidence of his o m , his duties do not end there. Ai important 81 any of thaae 18 the over. riding necessity of presenting to the court membem, by mal argument. the iseta. eireum(lt.neea, and inferences in a light moat favorable ta anaecu*ed. Except in YTIY~Y~Ieireum~tsncen. B failure to do that is, far aii Practicnl PYT~~FI,an admisdm of guilt. Certainly, the presentation of

   8 U.S. Dep't of Defense, Manual for Courta-Martial, United Stptali, 1851, para. 730. (The Msnud for Caurtr-Martial will be referred to hereinafter in the fmtnotel) 8s "MCM, 1851, pais. --.."and In the text a8 "the Manual.")

   4 MCM, 1961, para. 7 2 ~ . 6 United State8 V. MeMnhan. 6 USCMA 708, 21 CMR 31 (1956).eo A00 4liPB

   ARGUMENT OF MILITARY COUNSEL

   B "jury argument'' is a virtual corneratone of the univemd right toamistpnce of counsel . . , .I

   If counsel are to be bound by rules in the presentation of oral argument, where are the rules to he found? The Uniform Code of Military Justice" is silent with respect to argument. The Manual sets forth only the most general guidelines with regard to the orders and content' of argument on the findings. The Law Officer Pamphlet provides a modicum of elarifieation.l0 With regard to argument upon motions and other interlocutory matters, the Manual merely states that they may be made." While it dws pro. vide that both sides are entitled to an opportunity properly to present and support their respective contentions upon any question or matter presented to the court for decision,'P it is silent on the specific subject of argument upon the quantum of punishment." The Law Officer Pamphlet contains some material concerning arguments with respect to the sentence," but for a variety of reasons the language contained therein is open to question." It is obvious, then, that in order to find meaningful rules to which the limits of hi8 argument must conform, the military counsel must seek them in the decisions of the Court of Military Appeals and other appellate bodies. These decisions will be analysed in this article.

   The leading judicial pronouncement of the rules governing argument of counsel is contained, most succinctly, in the case of Bwgw Y. United States.16 After recounting the pronounced and

   persistent misconduct of the prosecuting attorney, the Court said: He may prosecute with esrneatneia and vigor-indeed, he should do $0.

   But while he may atdke hard blows, he is not at liberty to strike foul onea.liIt is one purpose of this article to deflne the boundaries between such hard blows and foul ones.

   Suppose that counsel, through stratagem, ignorance or carelessness, exceeds the bounds of proper argument or fails otherwise with regard to it. What effect will this have upon the rights infringed, or the conviction obtained, thereby? A further purpose of this article is to examine cases in which such error has been committed and the measures which have been held effective in dealing with it either at the time of the trial or subsequent thereto.

   11. ARGUMENT ON FINDINGS

   A. BY THE PROSECUTION 1. Inflammatory statements

   Among the errors committed by trial counsel most often noted are those of a nature calculated to inflame the passions and prejudices of the court or to weigh upon its sympathies in favor of the specific victim of the wrongdoing of the accused, the class to which the victim belongs or Society in general.

   Many crimes, particularly ex offenses, are by their very nature inflammatory. The courts in dealing with allegedly improper arguments in such cases have distinguished between inflammatory statementa inherent in the offense and those which might be termed excessively or recklessly inflammatory.

   In the rape ease of United States u. Ransomla the accused can-tended he was prejudiced by inflammatory statements in the trial counsel's closing argument. The Court of Military Appeals did not restrict its examination to the remarks [not set forth in the opinion] singled out by the defense as improper, but studied the entire closing argument with great care. It concluded that the remarks of the trial counsel were essentially comments on reasonable inferences to be drawn from the circumstances BUT-rounding the offense and an such they did not overstep the bounds of propriety and fairness.

   Sa also in United States 9. Day.lB the trial counsel in his closing argument mentioned not only the indecent assaults by the accused upon his victim, but parenthetically mentioned the fact that in furtherance of his intent ta ravish he roughly tossed the

   17 Id. at 88.18 4 USCMA 196, 15 CMR 195 (1954).19 2 USCMA 416, 9 CMR 48 (1953)62 AGO t l i O *

   ARGUMENT OF MILITARY COUNSEL

   baby of his victim into his truck. The Court concluded that since there was evidence of this fact in the record the trial counsel did not exceed fair argument in utilizing the totality of circumstances surrounding the offense to substantiate his views. In both the Ransom and Day cases the test seems to be whether there is 8ome evidence in the record upon which the remarks of counsel can be reasonably based. The Court in Day summarized by stating that, "While inflammatory comments should be avoided, facts and circumstances interwoven with the offense need not be shunned even though they cast the accused in an unfavorable light."

   The analogy of this latter rule with that regarding evidence which might be considered inflammatory is obvious, and...