This opinion is subject to revision before publication.

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

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), contrary 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, 

UCMJ, 10 U.S.C. § 880 (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 finding that 

Appellant had received ineffective 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, 824-25 (A.F. Ct. Crim. App. 2014). Relevant to 

the current appeal, this Court vacated the lower court’s

second opinion and 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 misconduct during 

sentencing. United States v. Witt, No. ACM 36785 (reh), 

2021 CCA LEXIS 625, at *131, 2021 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 arguments but ultimately found no prejudice. 

Id. at *140-45, 2021 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

2021 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 

Appellant committed in the future. Did the trial 

counsel’s sentencing 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 did 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 the 

phone calls, Appellant changed into his battle dress 

uniform, 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”; “what 
United 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 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 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).

The 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 

materially 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, 60 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 (8th 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. 1997).

3 Appellant concedes in his brief that trial defense counsel 

never objected to trial counsel’s statements regarding the 

members’ personal and professional reputations. 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 

dangerousness 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 assigned 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) (internal 

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 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).

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 charges 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 court 
United 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 

sentence 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 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. 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

relatives’ 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 analysis to this case given 

their 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 

improper 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 prejudice 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, 248 (C.A.A.F. 2014)).

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 sentence. Erickson, 65

M.J. at 224-26. In the past, this Court has often placed 

significant weight on the third Fletcher factor—the weight

of the evidence supporting the sentence. For example, in 

Erickson, we found no prejudice in a case where trial 

counsel erred 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 “particularly 

egregious,” the Court held that the evidence supported the 

conclusion that the appellant would have received the 
United States v. Witt, No. 22-0090/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 error 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 evidence in 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 factors, 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 counsel 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. Applying 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 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. 82 M.J. 239, 247 (C.A.A.F. 2022). 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 
United States v. Witt, No. 22-0090/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. 

Sentencing 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 alia, 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 factors do not account for these nuances, 

especially 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 Appellant was sentenced based on the 

evidence alone. And of course, this Court—unlike the 

service courts—has no authority to engage in sentence 

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 

precedents emphasizing the third Fletcher factor only

exacerbate that concern. 

In the case at hand, I believe that trial counsel’s 

comments amounted to obvious error, for 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 these 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 of appeals in support of this 
United States v. Witt, No. 22-0090/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 pressuring

panel members to sentence the defendant based on how 

their fellow servicemembers will 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, trial 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 harsher 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 out 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. 1997) (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, 770-72

(8th Cir. 1992) (determining that the prosecution’s request for 

the jury to “ ‘stand as a bulwark against’ ” the continuation of 

the defendant’s drug dealing was an inflammatory and improper 

appeal to be the conscience of the community).
United States v. Witt, No. 22-0090/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, rather 

than a broad spectrum of lawful punishments, Appellant 

faced only three possible sentences—death, life 

imprisonment 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 their 

superiors, 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, 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?’ ” 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 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.
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 

responsibility for any future victims of Appellant if they 

failed to sentence him in accordance with the Government’s 

wishes. As one example, trial 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. And as demonstrated below, 

I strongly believe that the majority’s prejudice analysis is 

fundamentally flawed.

The Fletcher Factors

In seeking 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 test for improperly admitted sentencing evidence 

holds 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 has 

applied to errors that occur during both the findings and sentencing phases of the court-martial—

is considerably more difficult to apply to 
United 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 

guilty), there is a broad spectrum of lawful punishments that a panel might adjudge. Complicating matters further, it is much more difficult to 

compare 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 no 

analogous 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 substantial 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 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 [sentenced] the appellant on the basis of the evidence alone.” 

Fletcher, 62 M.J. at 184 (emphasis 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, 2021 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 as 

all reasonable inferences fairly derived from such evidence.” Baer, 53 M.J. at 237. Sentencing must be about an 
United 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 selfinterest 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 in 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” (citations omitted)); see also

United States 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 prejudice 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 servicemembers 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 result 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 the 
United 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 and 

professional interests. Such misconduct by the Government irredeemably contaminated 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.