Overzealous Army Prosecutor Tanks Court-Martial Sentence

Accused was convicted at a general court-martial for making a false official statement. As a result, a military panel sentenced him to a  bad-conduct discharge (BCD), forfeiture of pay for one month, and reduction to E-1.  On appellate review, however, United States v. Marsh, 70 M.J. 101 (2011) reversed the sentence because the prosecutor inappropriately inflamed the panel by arguing, during the pre-sentencing proceeding,  “You can’t trust the accused. The accused is an aircraft  mechanic, someone you trust to work on your airplanes, to tighten that bolt, to make sure that those aircraft are worthy to fly, to do rescue missions, to serve this Army. Can you trust someone who lies with the lives of those pilots?”   In addressing the sacrosanct  rule against using present tense personal pronouns,  the appellate court extended its temporal reach by citing Hodge v. Hurley, 426 F.3d 368 (6th Cir. 2005) for the proposition that court members can never be asked “to place themselves in the shoes of [potential] future victims”, as well.  Notably, military defense counsel did not object to the improper argument. If he had, the court members might have received a curative limiting instruction that would have cleansed the prejudicial comment.


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