Court of Appeals for the Armed Forces

In United States v. Harrington, the court decided three issues.

(1) Was the evidence of communicating a threat legally sufficient? It was the court decided and affirmed the findings.

(2) Did the military judge err in denying a defense request that the members be informed of the maximum punishment for each specification of which convicted? It was the court decided. In this case the members were deciding a unitary sentence.

​The military judge abused his discretion in denying Appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law. Contrary to the military judge’s apparent understanding, he possessed the discretion to instruct the panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses. 

The nub of the issue related to the maximum sentence for involuntary manslaughter was ten years.

• The defense was worried that the prosection would argue that “at least” fifteen years of confinement was appropriate for the involuntary manslaughter charge.
• The defense argued that “the members could be under some type of false impression that they could adjudge [a] 15-year sentence solely for [the involuntary manslaughter charge], which under the law they could not do."

And the court observed that "Further review of the record of trial demonstrates that Appellant’s concerns were not unfounded."

• At various points in the Government’s sentencing argument, trial counsel connected its requested fifteen years of confinement to the involuntary manslaughter charge.
• [T]rial counsel stated, “The [victim’s family] will never see their son. In 15 years that’s not going to heal it but it’s a start.”
• At the conclusion of the Government’s argument, trial counsel instructed the members to “think about [the shooting victim] when you go back there and we ask you that you give the accused a dishonorable discharge and at least 15 years in jail.” 

The effect of denying the instruction was the inability of the defense to argue that the President has set ten years as the maximum for involuntary manslaughter. The Appellant was sentenced to 14 years of confinement.

​Given the focus placed on the involuntary manslaughter conviction by the Government during sentencing and under the specific facts of this case, we cannot be confident that the military judge’s denial of the requested instruction did not substantially influence the adjudged sentence. 

(3) Was it an error for the victim's parents to give their unsworn statements through questions and answers from the trial counsel? The defense had objected to the procedure.

Once again, this Court is presented with the question whether a novel approach toward the delivery of a victim’s unsworn statement exceeds what the President has authorized under R.C.M. 1001(c)(5), and again we conclude ​that it does. See Edwards, 82 M.J. at 241 (finding reversible error when the military judge allowed the victim’s designee to present his unsworn victim statement in the form of a video slideshow set to background music). Presentation of the victim’s unsworn statement via a question-and-answer format with trial counsel violates the Rules for Courts-Martial because it contravenes the principle that an unsworn victim statement belongs solely to the victim or the victim’s designee. Id. (first citing United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019); and then citing Barker, 77 M.J. at 378). 
. . . 
​In Edwards, this Court reaffirmed the principle “that unsworn victim statements belong solely to the victim or the victim’s designee.” 82 M.J. at 246 (first citing Barker, 77 M.J. at 378, and then citing Hamilton, 78 M.J. at 342). We explained that the government may not use unsworn victim statements to supplement its own sentencing arguments, nor may it misappropriate the victim’s statutory right to be heard. Id. By participating in the delivery of the victim statements, the trial counsel in this case violated that principle.

The court found the errors prejudicial and set aside the sentence. On a separate note,

Although the interests of victims and the government often align, we note that this is not always the case. See, e.g., United States v. Horne, 82 M.J. 283, 289-90 (C.A.A.F. 2022) (holding that trial counsel committed unlawful command influence when ​she instructed investigators not to interview the victim’s husband at the special victims’ counsel’s request). 

Judge Maggs concurs and dissents in part. He agrees the evidence was legally sufficient, but he disagrees with the prejudice finding and would affirm the findings and sentence.