Military Lawyer - Court Martial Appealed due to "Bad Mouthing Army"
Derogatory remarks about the Army
United States v. Scheuerman, 67 M.J. 709 (A. Ct. Crim. App. 2009) is a case that involved deeogatory remarks regarding the Army. The Appellant’s platoon sergeant from the time period after the second AWOL testified during presentencing. He testified that he saw the Appellant “degrade” the Army to new soldiers by telling them they did not know what they were getting into and how bad the Army was. The platoon sergeant considered this “badmouth[ing]” of the Army had a negative affect on the Army. The military judge overruled a defense objection that the government was using specific instances of conduct to establish rehabilitative potential.
On appeal, the Appellant asserts the platoon sergeant’s comments were improper rehabilitation evidence, improper aggravation evidence, and also failed M.R.E. 403 balancing. The ACCA ruled that the military judge did not error by allowing the derogatory statements. Though it was improper rehabilitation evidence, it was proper aggravation evidence, and preclusion of evidence under one sub-section of R.C.M. 1001 does not preclude admission under a separate sub-section of R.C.M. 1001. The ACCA found that “Appellant’s poor attitude toward military service, which, in part, motivated his multiple AWOL periods, is a circumstance surrounding his offenses.”
“Essentially, appellant repeatedly made derogatory remarks about his victim and now complains those remarks should not be considered in his sentencing. We disagree; appellant’s remarks demonstrate a lack of remorse for the offenses of which he was convicted and, as such, are relevant in fashioning an appropriate sentence.” Although the military judge did not conduct a M.R.E. 403 balancing on the record, the ACCA found no abuse of discretion in a trial by military judge alone where the subject statements “clearly undermine[d] morale, order, and discipline in the military.
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