Trial counsel may not to refer to the convening authority or argue command policies
- R.C.M. 1001(g).
- United States v. Thomas , 44 M.J. 667 (N-M. Ct. Crim. App. 1996). Trial counsel argued in drug case that “the CNO . . . has a zero tolerance policy for anyone who uses any kinds of drugs.” Court found TC reference improper, and noted, “references to command or departmental policies have no place in the determination of an appropriate sentence in a trial by court-martial.” Error for military judge not to give instruction even though defense counsel failed to object.
- United States v. Grady , 15 M.J. 275 (C.M.A. 1983). Military judge had sua sponte duty to correct counsel’s improper comments on Strategic Air Command policies on drugs.
- United States v. Sparrow , 33 M.J. 139 (C.M.A. 1991). It was improper for the trial counsel to mention the convening authority by name and then to tell the members todo the right thing.
- United States v. Simpson , 12 M.J. 732 (A.F.C.M.R. 1981). It was error for trial counsel to argue that referral to special court-martial was exercise of clemency by convening authority.
- United States v. Fortner, 48 M.J. 882 (N-M. Ct. Crim. App. 1998). Trial counsel’s reference in closing argument to Navy core values did not constitute improper reference to higher authority, as prohibited in RCM 1001(g). Such values are aspirational concepts that do not require specific punishment for failure to comply. Sentencing Argument (Art and Law)