(dissenting):
I admit at the outset that I write with the bias of a trial judge. I admit that the majority opinion has a basis for its conclusion that the proffered evidence could have been ad*109mitted under RCM 1001(c)(1)(A), Manual for Courts-Martial, United States (1995 ed.), as evidence to explain the facts and circumstances surrounding the offense. Indeed, the most common form of admission of this type of victim-suffering evidence is in aggravation, See RCM 1001(b)(4) and RCM 1004 (death-penalty evidence). That is where' I stop,
This case is every trial judge’s nightmare. It provides an excellent scenario for a sentencing seminar for trial judges who enjoy discretionary sentencing and who are not bound by sentencing guidelines. Let’s turn briefly to the facts.
The accused offered evidence that the junior attending physician believed that, if the senior attending physician had performed a different procedure, the victim may have been saved. The military judge ruled that the evidence was inadmissible because— while it was relevant to the question of criminal liability, i.e., it may have shown an intervening or contributing cause of death — it was not relevant to the question of an appropriate sentence. That ruling is the basis of the majority opinion’s view that this ruling constituted reversible error.1
I would affirm for the following reasons:
1. This case really is one that falls under Mil.R.Evid. 403, Manual, supra. The proffered testimony was taking the trial directly to a civil malpractice case, right in the middle of a criminal sentencing hearing. Does anyone really believe that the Government was going to sit idly by and let the junior physician take a free shot at his superior officer? Of course not! At a minimum, the Government would have called the senior physician and possibly may have tried to call the Chief of Thoracic Surgery at the National Naval Medical Center of Bethesda, Maryland; the President of the American College of Thoracic Surgeons; and the forensic pathologist who did the autopsy — if one was done — in order to prove that medical malpractice did not cause the victim’s death. Death was caused by the fatal stab wound. Even if all of these witnesses had conceded that another procedure might have saved the victim, they also would likely have agreed that the proeedure used might have saved the victim.
This is a classic example of a trial within a trial. I shudder to imagine how this case would have been managed before members. I assume the majority would sit back and enjoy the malpractice litigation with all of the experts discussing standards of care and the myriad procedures available to doctors to treat stab wounds.
In any event, the trial judge simply should have ruled that any probative value to be gained by the speculative testimony of the junior physician was far outweighed by the danger of confusion and waste of time on collateral issues. Therefore, the testimony was inadmissible under Mil.R.Evid. 403. This ruling would have been tested for abuse of discretion and, to paraphrase the junior doctor, it would have had a better chance of surviving the appeal.
2. I also would affirm the military judge’s decision because of my experiences as a trial judge and my involvement with numerous sentencing cases. I have referred to these experiences as “Lessons from the Junkyard.”2 As some anonymous person said, “One man’s junk is another man’s treasure.” My reading of this record suggests that the military judge, who after all was the person doing the sentencing, did not regard this speculative testimony as matter in extenuation and mitigation to the sentence in this case. When the smoke cleared, there was only one person who could determine if this controversy between the physicians was relevant to the existence of any fact of eonse*110quence regarding the determination of the sentence in this case: that was the military judge. Mil.R.Evid. 401 and 402. The judge said, “I don’t see the relevancy, in this case in sentencing, of this testimony.” Why do we make judges accept evidence that, in then-judgment, is not relevant? It beats me!
3. The third reason I would affirm is that, even if the military judge did abuse his discretion by preventing the junior physician’s testimony, the error was clearly harmless in this trial before military judge alone. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
Having said all this, I would remind military judges of two rules that should always be followed. These rules come from “Lessons from the Junkyard.”
RULE 1
A TRIAL JUDGE WILL NEVER BE REVERSED FOR LETTING IN DEFENSE EVIDENCE ON SENTENCING.
RULE 2
A TRIAL JUDGE WILL NEVER BE REVERSED FOR EXCLUDING GOVERNMENT EVIDENCE ON SENTENCING.
Reversal on appeal could have been easily avoided if the military judge simply had said: “Counsel, it appears to me that this evidence is of limited value because it is speculative, and it would simply create a mini-trial -within this trial. Nevertheless, I will accept your proffer counsel, and hear what the good doctor has to say. However, I am not going to turn this trial into a malpractice case, so that is as far as this is going to go.” If the military judge had done that, he would have confronted trial counsel’s effort to put on counter evidence to rebut.
Trial counsel need to understand, however, the human dynamics that go into sentencing. It is highly unlikely that this judge was going to decrease the sentence because the doctors could not agree on the procedure to use to try to save the victim. This ease was treated as a serious accident, involving a dangerous weapon, and appellant was sentenced accordingly. See generally United States v. Kinman, 25 MJ 99, 102, 104 n. 3 (CMA 1987) (Cox, J., dissenting).
. Based upon his footnote, it is apparent that Judge Sullivan has convicted the lead physician of malpractice. See generally United States v. Billig, 26 MJ 744 (NMCMR 1988). He altogether misses the point of my dissent. Furthermore, what is “truth in sentencing”? Would the judge give a higher sentence if he concluded there was no malpractice?
. I first heard the title, "Lessons from the Junkyard,” from either the late, Honorable Julius B. "Bubba" Ness, Chief Justice of the South Carolina Supreme Court, or from the Honorable Rodney A. Peeples, Resident Judge of the Second Judicial Circuit of South Carolina. Both of these distinguished jurists have dedicated considerable time and energy to teaching judges how to be judges.