This opinion is subject to revision before publication.



### U NITED 

### S TATES 

### C OURT OF 

### A PPEALS

FOR THE 

### A RMED 

### F ORCES

_______________

UNITED STATES Appellee

v.

Andrew P. WITT
, Senior Airman

United States Air Force , Appellant

No. 22

- 0090 Crim. App. No. 36785

Argued December 6, 2022

— Decided June 5, 2023

Military Judge: Mark A. Bridges

For Appellant: Major Jenna M. Arroyo (argued); Major Kasey W. Hawkins and Mark C. Bruegger

, Esq. (on brief).

For Appellee: Major Morgan R. Christie (argued); Colonel Naomi P. Dennis, Lieutenant Colonel
Thomas J. Alford

, and Mary Ellen Payne

, Esq. (on brief); Lieutenant Colonel Amanda L. K. Linares

, Lieutenant Colonel Matthew J. Neil

, and Major Zachary T. West

.

Judge SPARKS delivered the opinion of the Court,
in which Judge MAGGS and Senior Judge
CRAWFORD joined. Judge HARDY filed a separate opinion concurring in the judgment. Chief Judge
OHLSON filed a separate dissenting opinion

.

_______________United States v. Witt , No. 22

- 0090/AF Opinion of the Court

2 Judge SPARKS delivered the opinion of the Court.

In 2005, a general court

- martial consisting of officer
members convicted Senior Airman Andrew P. Witt (Appellant), c ontrary to his pleas, of one charge and two specifications of premeditated murder in violation of Article 118, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 918 (2000) ; and one charge and specification of attempted premeditated murder in violation of Article 80,
U CMJ, 10 U.S.C. § 8 8 0 (2000)

. The panel sentenced Appellant to death.

On appeal, the United States Air Force Court of Criminal Appeals affirmed the findings, but set aside the sentence and ordered a rehearing, after f inding that Appellant had received ineff ective assistance of counsel
due to trial defense counsel’s failure to investigate certain mitigating evidence

. United States v. Witt , 72 M.J. 727,
758

- 66 (A.F. Ct. Crim. App. 2013). On reconsideration, the
lower court held that the trial defense counsel’s defective performance did not result in prejudice and affirmed the approved findings and sentence. United States v. Witt , 73 M.J. 738, 82 4

- 2 5 (A.F. Ct. Crim. App. 2014) . Relevant to the current appeal, t his Court vacated the lower court’s second opinion a nd returned the case for a sentence rehearing in accordance with the lower court’s original opinion

. United States v. Witt , 75 M.J. 380, 385 (C.A.A.F. 2016)

. On rehearing, Appellant was sentenced to confinement
for life without the possibility of parole

, a reduction in grade to E

- 1, forfeiture of all pay and allowances, a reprimand, and a dishonorable discharge

. In relevant part, on appeal to the lower court, Appellant argued that trial counsel committed prosecutorial mi sconduct during sentencing. United States v. Witt , No. ACM 36785 (reh)

, 2021 CCA LEXIS 625, at *131, 202 1 WL 5411080, at *40 (A.F. Ct. Crim. App. Nov

. 19, 2021 ) (unpublished). The
lower court found error in some of the Government’s sentencing argument s but ultimately found no prejudice.
Id . at *140

- 4 5 , 202 1 WL 5411080 , at *43

- 44. The lower court affirmed the findings and new sentence. Id . at *166,United States v. Witt , No. 22

- 0090/AF Opinion of the Court

3 202 1 WL 5411080 , at *50. We then granted review of the following issue:

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 A ppellant committed in the future. Did the trial counsel’s sent encing argument constitute prosecutorial misconduct that warrants relief?

United States v. Witt , 82 M.J. 424 , 424

- 25 (C.A.A.F. 2022) (order granting review).

Appellant argues that the lower court erred when it found that trial counsel’s improper argument d id not constitute prejudice

. Brief for Appellant at 18, United
States v. Witt

, No. 22

- 0090 (C.A.A.F. Aug. 5, 2022). We answer the granted issue in the negative and affirm the
decision below

. I. Background

The Underlying Offenses
The genesis of the instant case stems from the murders of Senior Airman A.S. and his wife, J.S., and the attempted murder of Senior Airman J.K. by Appellant in 2004. Appellant and the couple were friends until he attempted to kiss J.S. After being told by his wife about the attempted kiss, A.S. and his friend J.K. called Appellant several times
to confront him about the attempted kiss , as well as to threaten to tell his leadership about an alleged affair Appellant was having with an officer’s wife. After th e phone calls, Appellant changed into his b attle d ress

u niform, drove to A.S.’s house where A.S., J.S., and J.K

. were located, and stabbed all three, making sure not to “leave any evidence” or “witnesses.”

The Sentence Rehearing

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” ; “whatUnited States v. Witt , No. 22

- 0090/AF Opinion of the Court

4 risk will you accept on someone else’s behalf” ; and if the panel would not sen tence 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 t rial counsel unequivocally requested the panel return a
sentence of death.

Defense counsel objected only twice during arguments. The first objection was made near the end of trial counsel’s

two

- hour argument, when defense counsel objected to trial
counsel comparing Appellant’s prison conditions to the surviving victim’s future life. 1 The second objection was made almost immediately after the first, with defense counsel objecting to trial counsel’s asking the panel “what risk will you accept on someone else ’s behalf?” The military judge overruled both objections. The panel deliberated for approximately eight hours before returning a sentence of life without the possibility of parole.

II. Discussion
Appellant argues that trial counsel acted improperly
when he asked the panel questions such as (1) “what will you stand for ” ); (2) “ [ w ] here will you draw the line” ); and

“ [ w ] hat risk will you accept on someone else’s behalf

. ” Appellant’s theory is that these comments asked the panel
members to consider what others would think of them based on their sentencing decision, which is improper under this Court’s precedent in United States v. Norwood

, 81 M.J. 12, 19 (C.A.A.F. 2021).

T he Government’s principal response is 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

1 The content of this comment is not before us on appeal.United States v. Witt , No. 22

- 0090/AF Opinion of the Court

5 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. 2

“Improper argument involves a question of law that this
Court reviews de novo.” United States v. Frey , 73 M.J. 245, 248 (C.A.A.F. 2014). “The legal test for improper argument is whether the argument was erroneous and whether it

mat erially prejudiced the substantial rights of the
accused.” Id

. (internal quotation marks omitted) (citation omitted). Because defense counsel failed to object to the arguments at the time of trial, we review for plain error. 3 United States v. Rodriguez , 6 0 M.J. 87, 88 (C.A.A.F. 2004). The standard for plain error review requires that: “(1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.” United States v. Maynard

, 66 M.J. 242, 244 (C.A.A.F. 2008) (internal quotation marks omitted) (citation omitted). The burden lies with Appellant to establish plain error. Id

. 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

2 See United States v. Ebron , 683 F.3d 105, 146 (5th Cir. 2012); United States v. Alloway , 397 F.2d 105, 113 (6th Cir. 1968); United States v. Johnson , 968 F.2d 768, 770 (8 th Cir. 1992); United States v. Koon , 34 F.3d 1416, 1444 (9th Cir. 1994), aff’d in part and rev’d in part , 518 U .S. 81 (1996); United States v. Bailey , 123 F.3d 1381, 1401 (11th Cir. 199 7 ).

3 Appellant concedes in his brief that trial defense counsel never objected to t rial counsel’s statements regarding the members’ personal and professional reputation s

. But Appellant

argues trial defense counsel did object to trial counsel’s

statements concerning the panel members’ responsibility for future harm . We disagree. Trial defense counsel’s only objection

was: “Improper Argument. There is no evidence of future danger ousness in this case. It is not an aggravator.” This objection concerns only the sufficiency of the evidence to support trial counsel’s argument. The objection does not concern the general appropriateness of the argument , which is the subject of the assign ed issue.United States v. Witt , No. 22

- 0090/AF Opinion of the Court

6 in prejudice).” United States v. Fletcher , 62 M.J. 175, 178 (C.A.A.F. 2005) (internal quotation marks omitted) (citation omitted). “[P]rosecutorial misconduct by a trial
counsel will require reversal when the trial counsel's comments, taken as a whole, were so damaging that we
cannot be confident that the members convicted the appellant on the basis of the evidence alone.” United States
v. Hornback , 73 M.J. 155, 160 (C.A.A.F. 2014) (in ternal quotation marks omitted) (citation omitted). “Where improper argument occurs during the sentencing portion of the trial, we determine whether or not we can be confident that [the appellant] was sentenced on the basis of the
evidence alone.” Frey , 73 M.J. at 248 (alteration in original) (internal quotations omitted) (citation omitted).

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 ha ve looked at three factors: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the wei ght 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).

Here, as in Halpin , we find the weight of the evidence supporting the conviction strong enough to establish a lack of prejudice in and of itself. Given the char ges for which Appellant was convicted there were 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. Article § 118, UCMJ, 10 U.S.C. § 918 (2000); Manual for Courts

- Martial , United States pt. IV,

para. 43 .e.(1) (2000 ed.) ( MCM ) . The military judge instructed the panel prior to their deliberation that “a death sentence may not be adjudged unless all of the courtUnited States v. Witt , No. 22

- 0090/AF Opinion of the Court

7 members find, beyond a reasonable doubt, that one or more aggravating factors existed,” and “may not adjudge a sentence of death unless [the panel] unanimously find [s] that any and all extenuating and mitigating circumstances are substantially outweighed by any aggravating
circumstances.”

The Government contends that a sentence of life without the possibility of parole at a minimum was a “foregone conclusion,” and thus regardless of any improper argument, the panel would have reached the same result

. Appellant argues, however, that the panel’s imposition of a

sen tence of life without parole was not supported when taking into consideration the many mitigating factors he presented, 4 his rehabilitative potential, and defense
counsel’s request that the panel choose the sentence offering Appellant the possibility of redemption

— in
addition to the fact that the option of life with parole was available to the panel

. We reject both arguments. 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 stab bings 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 the y believed the aggravating circumstances were substantially outweighed by the extenuating and mitigating
circumstances. True, we can never know what exactly is in

4 Appellant listed twenty

- six mitigating factors which include such things as Appellant’s lack of prior criminal history, positive enlisted performance reports, his upbringing (which was influenced by mental health disorders in relatives and by

r elatives’ addictive disorders), his schizotypal personality disorder, and his remorse for his crimes

.United States v. Witt , No. 22

- 0090/AF Opinion of the Court

8 the mind of the members

, yet here it stands to reason that they applied their own critical an alysis to this case given
the ir rejection of the death sentence despite trial counsel’s

comments

. Thus, we find that Appellant has suffered no prejudice.

III. Conclusion

The decision of the United States Air Force Court of Criminal Appeals is affirmed.United States v. Witt

, No. 22

- 0090/AF

Judge HARDY

, concurring in the judgment

. I concur with the Court’s ultimate conclusion that trial counsel’s sentencing argument did not result in material prejudice to any of Appellant’s substantial rights

. The majority arrives at that conclusion by faithfully applying this Court’s precedents assessing whether trial counsel’s impr oper comments at sentencing prejudiced Appellant. I write separately to express my view that those precedents

are too permissive of improper argument at sentencing. In an appropriate case

, I believe that we should reevaluate our approach to assessing preju dice from such errors

. The Court first developed the factors for assessing prejudice used today in United States v. Fletcher , a case addressing improper argument at the findings stage. 62 M.J. 175, 184 (C.A.A.F. 2005). In United States v. Erickson

, this Court repurposed the Fletcher factors to assess prejudice from improper sentencing argument. 65 M.J. 221, 224 (C.A.A.F. 2007). 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 , 2 48 (C.A.A.F. 20 14 ) ).

As modified for the sentencing context, the Fletcher
factors instruct a reviewing court to weigh three
considerations : (1) the severity of the misconduct; (2) the curative measures taken, if any; and (3) the weight of the evidence supporting the adjudged s entence

. Erickson

, 6 5
M.J. at 224

- 26

. In the past, this Court has often placed significant weight on the third Fletcher factor

— the w e ight of the evidence supporting the sentence . For example, in
Erickson , we found no prejudice in a case where trial
counsel err ed by comparing the appellant to Adolph Hitler, Saddam Hussein, and Osama bin Laden and describing him as a demon belonging in hell

. Id . at 222 , 226

. Noting
that the appellant ’s criminal acts were “p articularly egregious,” the Court held that the evidence supported the
conclusion that the appellant would have received theUnited States v. Witt , No. 22

- 00 90 /AF Judge HARDY, concurring in the judgment

2 same sentence irrespective of trial counsel’s improper

comments. Id . at 225

- 26.

Similarly, in United States v. Halpin

, the appellant argued that trial counsel committed reversible err or when he suggested during his sentencing argument that the appellant wanted his wife to die even though this
assertion

— as well as several others made by trial
counsel

— was not supported by any ev idence i n the record. 71 M.J. 477, 481

- 82 (C.A.A.F. 2013) (Erdmann, J

. , with whom Effron, S.J., joined, dissenting) (describing the alleged errors). Jumping straight to prejudice and the
Fletcher fact or s, the Court concluded that “the third Fletcher factor weighs so heavily in favor of the Government that we are confident that Appellant was
sentenced on the basis of the evidence alone.” Id . at 480.

Finally, in Frey

, the Court agreed with the lower court
that trial co unsel erred when he urged the panel members to apply common sense and their knowledge of the “ways of
the world”

— rather than any evidence in the record

— to sentence the accused based on a risk of recidivism through
serial molestation. 73 M.J. at 249. Applyi ng the Fletcher factors, the Court found that “although the first two factors favor Appellant, the weight of the evidence supporting the

sentence adjudged is such that we can be ‘confident that Appellant was sentenced on the basis of the evidence
alone.’ ” Id

. ( quoting Halpin , 71 M.J . at 480 )

. 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 b ecause 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. 82 M.J. 239 , 247 (C.A.A.F. 2022). An appellate court faces a more challenging t ask when asked
to determine whether an error had a substantial influence on the sentence (where there is a broad spectrum of lawfulUnited States v. Witt , No. 22

- 00 90 /AF Judge HARDY, concurring in the judgment

3 punishments), as opposed to the finding (where there is only a binary choice between guilty and not guilty). Id

. Se ntencing requires balancing multiple considerations to craft a punishment that best serves the varied purposes of sentencing. See Rule for Courts

- Martial (R.C.M.) 1002(f) (2019 ed.) (explaining that in imposing a sentence, the

court

- martial shall consider, inter al ia, the circumstances of the offense and the history of the accused; the impact of the offense on others and on the command of the accused; rehabilitation; deterrence; and the protection of others).
The Fletcher factor s do not account for these nuances

,

es pecially when significant weight is placed on the third
factor

. In applying the Fletcher factors to sentencing errors

, the Court seems to be asking whether the adjudged

sentence was appropriate for the committed offense despite the improper argument. But this is a different question than the one we purport to be answering: whether we are confident that A ppellant was sentenced based on the
evidence alone

. And of course, this Court

— unlike the
service courts

— has no authority to engage in sentenc e appropriateness

. See United States v . Fee , 50 M.J. 290, 291 (C.A.A.F. 1999 ) (“ Congress has vested the responsibility for determining sentence appropriateness

. . . in the Court [s] of Criminal Appeals, not in this Court. ” )

. Employing a test that focuses on whether the evidence supports the

sentence

, despite the presence of error, arguably transcends those jurisdictional limitations. This Court’s precedent s emphasizing the third Fletcher factor on ly
exacerbate that concern

. In the case at hand, I believe that trial counsel’s comments amounted to obvious error, f or the reasons explained by Chief Judge Ohlson. Witt , __ M.J. at __ ( 3

- 4 ) (Ohlson, C.J., dissenting ). I add only that I am dubious of
the Government’s defense of th e se remarks as permissible appeals for the panel to speak as the “conscience of the community.” Although the Government cites various cases from the federal courts o f appeals in support of thisUnited States v. Witt , No. 22

- 00 90 /AF Judge HARDY, concurring in the judgment

4 argument, 1 I do not find those cases

— which arise solely
from the civilian context

— to be persuasive in the military

context

. As this Court recently recognized in United States v

. Norwood , trial counsel commits plain error by pressur ing panel members to sentence the defendant based on how
their fellow servicemembers w ill view the sentence they adjudge

. 81 M.J. 12, 21 (C.A.A.F. 2021). This result makes sense because this type of sentencing argument invokes the specter of unlawful command influence when presented in

a court

- martial. In this case, t rial counsel asked the panel members, “What will your sentence stand for? What will your sentence say?” Even if these comments can be characterized as asking the panel to speak as the conscience of the community, they also implicitly ask panel
members to consider how the adjudged sentence will be perceived by their chain of command and encourage them

to impose a har sher sentence for the sake of their own

careers. These arguments have no place in the military justice system.

1 See, e.g.

, United States v. Ebron , 683 F.3d 105, 145

- 46 (5th Cir. 2012) ( deeming the prosecution’s question, “ ‘ [w]hat message would a life sentence send to [the defendant’s] crew and the prison community ’ ” a permissible appeal to act as the conscience of the community where the defendant, already imprisoned for a separate murder, killed a fellow inmate ) ; United States v. Alloway , 397 F.2d 105, 113 (6th Cir. 1968) ( finding the prosecution’s request that the jury “ ‘ speak o ut for the community ’ ” to be a permissible “conscience of the community” argument ); United States v. Shirley , 435 F.2d 1076, 1079 (7th Cir. 1970) ( finding the closing argument not improper where the prosecution noted a rise in car thefts and increasing

concern surrounding car thefts) ; United States v. Bailey , 123 F.3d 1381, 1401 (11th Cir. 199 7 ) ( finding the closing argument permissible where the prosecution asked the jurors to be people of dedication , judgment, integrity, and courage in rendering a decision) ; but see United States v. Johnson , 968 F.2d 768, 770

- 7 2 (8th Cir. 1992) (determining that the prosecution’s request for the jury to “ ‘ stand as a bulwark against ’ ” the continuation of the defenda nt’s drug dealing was an inflammatory and improper appeal to be the conscience of the community).United States v. Witt , No. 22

- 00 90 /AF Judge HARDY, concurring in the judgment

5 Nevertheless, due to the particular facts of this case, if we apply the Fletcher factors as our precedents dictate, Appellant cannot prevail. 2 Appellant committed gruesome crimes

, and the panel members rejected the Government’s explicitly requested sentence of death. In addition, r ather than a broad spectrum of lawful punishments, Appellant
faced only three possible sentences

— death, life impriso nment without the possibility of parole, or life imprisonment with the possibility of parole. Article 118, UCMJ, 10 U.S.C. § 918 (2000); Manual for Courts

- Martial,
United States pt. IV, para. 43.e.(1) (2000 ed.)

. Considering all these factors, I agree that Appellant has not shown a reasonable probability that but for trial counsel’s error, his
sentence would have been different.

2 Interestingly, when this Court recently found prejudice from similar improper sentencing argument in Norwood , it cited but did not expressly analyze the Fletcher factors. 81 M.J. at
19

- 21.United States v. Witt , No. 22

- 0090 /AF

Chief Judge OHLSON

, dissenting

. Overview

As the United States Air Force Court of Criminal Appeals (CCA) stated in its opinion, the trial counsel in this highly visible and emotionally charged murder case asked the panel “ members to consider how they would be judged by others by virtue of the sentence they mete[d] out

. ”
United States v. Witt , No. ACM 36785 ( reh ), 2021 CCA LEXIS 625, at * 141 , 2021 WL 5411080, at * 43 (A.F. Ct. Crim. App. Nov. 19, 2021) (unpublished) (emphasis added). In a military environment where the panel members could not only face social opprobrium from their peers but also suffer significant professional harm at the hands of theirsuperiors, this potently toxic argument irredeemably poisoned the entire sentencing process. Because the majority declines to order a new, untainted sentencing proceeding, I respectfully dissent.

Instances of Prosecutorial Misconduct
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, wh ere 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 ?’ ” Id.

at * 133

- 34, 2021 WL 5411080 , at *40. 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

. 1

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

.

1 I am nonplussed by the Government’s assertion that thesearguments 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.United States v. Witt No. 22

- 0090/AF
Chief Judge OHLSON

, dissenting

2 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

respon sibility for any future victims of Appellant if they
failed to sentence him in accordance with the Government’s
wishes. As one example, t rial counsel’s sentencing argument contained the following line: “What risk will you accept on another family’s behalf? ” As the CCA correctly concluded: “While Appellant’s future risk of misconduct

. . . was an appropriate consideration in fashioning Appellant’s sentence, the suggestion that the members would be personally responsible for any such misconduct was not.” Id. at *142, 2021 WL 5411080 , at *43.

As can be seen, trial counsel engaged in flagrant and egregious improper argument. A nd a s demonstrated below, I strongly believe that the majority’s prejudice analysis is fundamentally flawed.

The Fletcher Factors

In seeki ng to assess the prejudicial effect of the trial counsel’s grossly inappropriate arguments, the majority relies on the factors derived from United States v . Fletcher

, 62 M.J. 175, 184

- 85 (C.A.A.F. 2005) . These factors include the severity of the misconduct, the curative measures adopted, and the weight of the evidence supporting the sentence . However, in concluding that under Fletcher Appellant suffered no prejudice at the hands of the Government
because of the overwhelming weight of the sentencing evidence , the majority fails to adequately take into account three essential points.

First, this Court ’s recent observation in United States v.
Edwards , 82 M.J. 239, 247 (C.A.A.F. 2022)

, about the prejudice tes t for improperly admitted sentencing evidence
hold s equally true for the Fletcher prejudice test applied to improper sentencing arguments

. Specifically, the Court
stated :
Before analyzing the individual factors, it is worth noting that this test

— which the Court hasapplied to errors that occur during both the findings and sentencing phases of the court

- martial

— is considerably more difficult to apply toUnited States v. Witt No. 22

- 0090/AF
Chief Judge OHLSON

, dissenting

3 sentencing. Although there is a binary decision to be made with respect to the findings (guilty or not gui lty), there is a broad spectrum of lawful punishments that a panel might adjudge. Complicating matters further, it is much more difficult tocompare the “strengths” of the competing sentencing arguments than it is to weigh evidence of guilt. Proof of guilt can be overwhelming even without the erroneously admitted evidence, but there is noanalogous analysis for determining the appropriate sentence. It is thus harder for the Government to meet its burden of showing that a sentencing error did not have a subs tantial influence on a sentence than it is to show that an error did not have a substantial influence on the findings.

Id.

Second, in a case such as this one, the severity of the misconduct by the government

— as captured by the initial
Fletcher factor

— may be so pernicious and so pervasive and so ponderous that the scales of justice can never be righted by the other Fletcher factors.

And third, the multiple Fletcher factors can be distilled to a single passage from that opinion: “ [ P ] rosecutorial miscond uct by a trial counsel will require reversal when the
trial counsel’s comments

, taken as a whole

, were so damaging that we cannot be confident that the members [ sentenced ] the appellant on the basis of the evidence alone .”
Fletcher , 62 M

. J . at 184 (emphasi s added)

. Analysis

Trial counsel’s conduct

— “[a]sking members to consider
how they would be judged by others by virtue of the sentence they mete out”

— grossly violated fundamental principles of proper sentencing argument. Witt , 2021 CCA LEXIS 625, at *141, 2 021 WL 5411080, at *43 ; see also United
States v. Baer , 53 M

. J

. 235, 237 (C.A.A.F. 2000) ( Members must make their sentencing decision based upon “ cool, calm consideration of the evidence and commonly accepted principles of sentencing.” (citation omitted) (internal quotation marks omitted))

. A trial counsel’s sentencing argument must be limited to “the evidence of record, as well asall reasonable inferences fairly derived from such evidence.” Baer , 53 M.J. at 237. Sentencing must be abo ut anUnited States v. Witt No. 22

- 0090/AF
Chief Judge OHLSON

, dissenting

4 accused and his crimes, not about the panel members and their desire for public approval and self

- promotion. United States v. Shamberger , 1 M.J. 377, 379 (C.M.A. 1976) ( noting that trial counsel are prohibited from encouraging panel members “ to cast aside the objective impartiality demanded of [them] as

. . . court member[s] and judge the issue from the perspective of personal interest” (citation omitted) (internal quotation marks omitted) )

. Here, the trial counsel’s repetitive and heavy

- handed appeal to self

interest contaminated the sentencing proceedings beyond redemption.

Indeed, it is instructive to ponder the following point. During voir dire, if any of the panel members had stated
that

— when deciding upon the severity of the sentence to adjudge i n this case

— they would consider the effect a particular sentence could have on their personal reputation and military career, that panel member would have been deemed manifestly unqualified to sit on the court

- martial.
See United States v. Youngblood , 47 M.J. 338, 342 (C.A.A.F. 1997) ( holding “ that it was ‘ asking too much ’ of [two panel members] to expect them to impartially adjudge an appropriate sentence without regard for its potential impact on their careers ” ( citation s omitted )) ; see also
United State s v. Wood

, 18 C.M.A. 291, 296, 40 C.M.R. 3, 8 (1969) . And yet here

— without so much as a simple curative
instruction

— the trial counsel essentially implored all of the panel members to adopt that precise approach and the majority fails to find sufficient pre judice to merit a new sentencing proceeding. In the recent case of United States
v. Norwood , 81 M.J. 12, 21 (C.A.A.F. 2021) , we held that it

was reversible error for trial counsel to “pressure[] the[panel] members to consider how their fellow servicemembe rs would judge them and the sentence they adjudged instead of the evidence at hand.” I cannot see any meaningful distinction between that case and the instant case, and the majority opinion offers none. Thus, the result in this case
should be the same resu lt as in Norwood

— setting aside the sentence and authorizing a sentence rehearing.

Even in a case such as this one where the offenses are so heinous and the outcome of the sentencing proceeding is seemingly so obvious , the fundamental fairness of theUnited States v. Witt No. 22

- 0090/AF
Chief Judge OHLSON

, dissenting

5 court

- martial process matters. Deeply. And by discounting that principle in the instant case by finding “no prejudice” when the Government has employed such flagrant and noxious tactics, the majority’s decision bodes ill for how
trial counsel will think they can conduct themselves in future sentencing proceedings.

Conclusion
The prosecution in this court

- martial repeatedly exhorted the panel members to disregard the objective impartiality demanded of them under the law by urging them to factor into their sentencing decision their own personal andprofessional interests. Such misconduct by the Government irredeemably contami nated the entirety of the sentencing process. Because the majority has declined to take the necessary step of ordering a new sentencing proceeding in this case, I respectfully dissent.