Court of Appeals for the Armed Forces

United States v. Witt

In 2005, a general court-martial consisting of officer members convicted Senior Airman Andrew P. Witt (Appellant), contrary to his pleas, of one charge and two specifications of premeditated murder; and one charge and specification of attempted premeditated murder. The panel sentenced Appellant to death.
. . . 
[This left] three sentencing options for the panel to choose from: (1) death, (2) life without the option of parole, and (3) life with the option of parole.

Witt's appeal bounced up and down resulting in a resentencing hearing, because of IAC during sentencing. Witt is now sentenced to LWOP.

The issue in Witt is prosecutorial misconduct during the sentencing argument and prejudice. The granted issue is,

​During sentencing proceedings the trial counsel urged the panel members to consider how the sentence they imposed would reflect on them personally and professionally, and suggested that the members would be responsible for any harm Appellant committed in the future. Did the trial counsel’s sentencing argument constitute prosecutorial misconduct that warrants relief?

We are told that,

​At the rehearing on Appellant’s sentence in 2018, trial counsel asked the panel variations of the following: “[w]hat will you stand for”; “[w]here will you draw the line”; “what risk will you accept on someone else’s behalf”; and if the panel would not sentence Appellant to death in this case, in what case would they do so? Trial counsel made these types of comments approximately seventy times while also displaying PowerPoint slides which contained the same questions. Additionally, throughout his argument trial counsel unequivocally requested the panel return a sentence of death.

​Defense counsel objected only twice.

The prosecution argued 

​that trial counsel was not asking the panel members to consider how others would perceive them but instead asking them to act as the conscience of the community in making their decision. The Government asserts that the United States Courts of Appeals for the Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits have all held that arguments appealing to the jury to act as the conscience of the community are permissible so long as the comments are not intended to inflame the passions of the jury.

Judge Sparks writes for the majority (Maggs, Crawford) with Judge Hardy concurring and Chief Judge Ohlsen dissenting.

Judge Sparks concludes that there was no objection to these arguments so a plain error analysis is appropriate. Basically the majority then says that,

Even were we to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct “actually impacted on a substantial right of an accused (i.e., resulted in prejudice).”
. . . 
​Here, we need only address the third element of plain error because, even assuming error, we see no evidence that the trial counsel’s arguments resulted in material prejudice to any of Appellant’s substantial rights. In assessing prejudice in cases of prosecutorial misconduct, we have looked at three factors: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.” Fletcher, 62 M.J. at 184. In Fletcher we made no determinations regarding how much weight to give each factor. However, in United States v. Halpin, we found that the third factor so overwhelmingly favored the government it was sufficient to establish lack of prejudice. 71 M.J. 477, 480 (C.A.A.F. 2013).

There is a curious statement in the majority opinion.

It is unquestionable that throughout his argument, trial counsel’s singular and unambiguous goal was to obtain a sentence of death. Additionally, the evidence of the crimes for which Appellant was convicted supported a death sentence. Appellant confessed to a set of incredibly vicious and deliberate stabbings resulting in the death of a young married couple and permanent injury to the third victim. Yet despite trial counsel’s request and the nature of Appellant’s crimes, the panel unanimously sentenced Appellant to life without parole, suggesting that they believed the aggravating circumstances were substantially outweighed by the extenuating and mitigating circumstances.

Judge Hardy's concurrence reads as if he was on the edge and was thinking of joining the Chief's dissent? He makes an important distinction between the merits and sentencing when applying the Fletcher factors--

As I believe this case illustrates, the Fletcher factors are ill suited for use at sentencing because they do not orient us toward our stated goal of determining “ ‘whether or not we can be confident that [the appellant] was sentenced on the basis of the evidence alone.’ ” United States v. Witt, __ M.J. __, __ (6) (C.A.A.F. 2023) (alteration in original) (quoting United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014)).
. . . 
In my view, this Court’s heavy reliance on the third Fletcher factor is problematic. Weighing the evidence supporting a conviction makes sense when there has been improper argument during the findings stage because there may be overwhelming evidence of guilt beyond a reasonable doubt despite the improper argument. But as the Court recently recognized in United States v. Edwards—a case dealing with the similar problem of erroneously admitted sentencing materials—prejudice tests developed in the findings context are not always well suited to sentencing.

An appellate court faces a more challenging task when asked to determine whether an error had a substantial influence on the sentence (where there is a broad spectrum of lawful punishments), as opposed to the finding (where there is only a binary choice between guilty and not guilty).

Judge Hardy seems to suggest that when looking to the third Fletcher factor at sentencing the court is doing a sentence appropriateness assessment--which it is not permitted to do.

He finds here "obvious error" in the sentencing arguments and he would not give weight to the civilian cases cited by the Government.

​In the end he concludes,

Nevertheless, due to the particular facts of this case, if we apply the Fletcher factors as our precedents dictate, Appellant cannot prevail. Appellant committed gruesome crimes, and the panel members rejected the Government’s explicitly requested sentence of death.

Therefore the sentence is appropriate???

​The Chief Judge says that,

As noted by the CCA, during his presentencing argument the “[t]rial counsel described the members’ obligations in notably personal terms, such as when he asked the members, ‘From E-6 to O-6, where else in your career will you have the opportunity to draw the line as an individual, and as an Airman on what you will allow?’”Trial counsel also argued as follows: Members, make no mistake about it; your sentence will send a message. It will send a message about what you as an individual, and what you as an Airman will accept. It will—it will tell everyone where you draw the line, and what you will stand for. It will.

Trial counsel repeated this sentiment in various ways more than seventy times.

n. 1. I am nonplussed by the Government’s assertion that these arguments by trial counsel were merely calls for the panel members to act as the proverbial conscience of the community when deciding what sentence to impose. As can be seen, the plain language of the trial counsel’s statements refutes that claim.
. . .
As if this improper line of sentencing argument were not egregious enough, the trial counsel also essentially told the panel members that they would be accepting personal responsibility for any future victims of Appellant if they failed to sentence him in accordance with the Government’s wishes.

What follows from that is a dissection of the majority's "flawed" application of Fletcher. The CJ also raises a good point for trial practitioners about voir dire that is directed along the same lines as what happened here in argument and with reference to United States v. Youngblood, 47 M.J. 338, 342 (C.A.A.F. 1997); United States v. Wood, 18 C.M.A. 291, 296, 40 C.M.R. 3, 8 (1969); United States v. Norwood, 81 M.J. 12, 21 (C.A.A.F. 2021).

Trial practitioners might well think about the concurrence and dissent when reviewing trial counsel's proposed voir dire and their later arguments on the merits and sentencing. Their Guide for the [Perplexed] Nonplussed may be a roadmap to avoid or prevent later errors.