concurring in the result:
I agree that the trial counsel’s argument was not plain error and the failure to object constitutes waiver. However, I must disassociate myself from any implication of the majority that the remarks of the trial counsel were proper. The so-called “Golden Rule” argument is traditionally recognized as improper because it invites the court members to depart from neutrality and decide the case on the basis of personal interest and bias rather than on the evidence.1 See e.g. United States v. Wood, 40 C.M.R. 3 (C.M.A.1969); United States v. Begley, 38 C.M.R. 488 (A.B.R.1967); Dyer v. State, 154 Ga.App. 281, 268 S.E.2d 758 (1980); Lucas v. State, 335 So.2d 566 (Fla.App. 1976); Adams v. State, 192 So.2d 762 (Fla. 1966). See also Ivy v. Security Barge Lines, Inc., 585 F.2d 732 (5th Cir.1978), rev’d on other grounds, 606 F.2d 524 (5th Cir.1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980). *784In my view, it is equally improper to invite the court members to substitute their relatives for victims of past or future crimes.
An argument on future dangerousness may, under proper facts, suggest potential harm to others, but the suggestion may not include possible injury to the relatives of court members as was done in this case. To be legitimate, the future dangerousness argument must be impersonal. There is a fundamental distinction between a prosecutor asking the rhetorical question “Whose daughter will it be next time?” and his beseeching the court members to protect their daughters and his daughters from future criminal conduct. In the first instance, the term “daughter” is permissibly used in the generic sense and in the latter it is incorrectly used to provoke personal interest. The risk is simply too great that such an invitation will devour the neutrality that is essential to a proper sentence determination.
The argument in this case is similar in pertinent part to the one condemned in Wood, 40 C.M.R. at 8, in which the court held that “to ask a court member to place himself in the position of a near relative wronged by the accused is to invite him to cast aside the objective impartiality demanded of him.” Throughout his argument, the trial counsel in Wood also reminded the court members to fulfill their “responsibility to your society or the Air Force,” and implored them to act “[a]s members of society,” and “as the stalwarts of society.” 40 C.M.R. at 10. Yet, reminding the court members of their judicial capacity did not neutralize the venom of the objectionable remarks. Similarly, an improper argument that appeals to personal prejudice is not legitimized because it includes a request for protection of a particular class of persons such as “all our children” as was done in Wood or all “19 year old girls” as was requested in this case. Id.
Furthermore, I believe whenever the future harm argument is made, the court members should be instructed on how to evaluate the argument so as to minimize the risk of punishing an accused for a crime not committed. The court recognized in Brooks v. Kemp, 762 F.2d 1383, 1398 n. 21 (11th Cir.1985) (en banc), vacated and remanded on other grounds, — U.S. -, 106 S.Ct. 3325, 92 L.Ed.2d 723 (1986), that no such instruction was given. The dissenting opinion in Wood cautions that an accused is to be tried for crimes committed, not for a course of future conduct.2 40 C.M.R. at 12.
While the argument in this case was not inflammatory like the one criticized in United States v. Shamberger, 1 M.J. 377, 379 (C.M.A.1976), it is a non sequitur to imply there was no error. In United States v. Hutchinson, 15 M.J. 1056 (N.M.C. M.R.1983), sentence rev’d on other grounds, 18 M.J. 281 (C.M.A.1984), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984), while the court ruled that the argument of the trial counsel was not inflammatory, it held that it was improper for trial counsel to appeal to the sympathy of the court members as fathers and to invoke trial counsel’s compassion as a father.
The majority sanctions an argument that, in my opinion, appeals to the personal interest of court members. I am troubled that as a consequence, this court has placed its imprimatur on similar arguments in judge alone cases where the personal appeal is more defined. Therefore, I am deeply concerned that the principal opinion will lead to the eventual annihilation of the longstanding rule in Wood.
However, I join in affirming the findings of guilty and the sentence.
SMITH, Judge, with whom Judge LYMBURNER concurs, dissenting:Earlier in the history of this case, in United States v. Williams, 23 M.J. 525 *785(A.C.M.R.1986), vacated and reh’g en banc ordered, (A.C.M.R. 17 Sept. 1986) (order of court en banc) (unpub.), we found (1) that the trial counsel’s argument on sentencing was improper, (2) that the military judge had a sua sponte duty to interrupt and take corrective action, (3) that the improper argument error was not waived by trial defense counsel’s failure to object, and (4) that appellant was prejudiced by the improper argument. After careful reconsideration, we adhere to our original findings and respectfully dissent.
Improper Argument
Judicial precedent in the court-martial system convinces us that military courts have never labeled, as proper, argument directing fact finders or sentencing authorities to place themselves in the position of a near relative of a victim. It is axiomatic that the sixth amendment of the U.S. Constitution requires that an accused be tried by impartial jurors and prohibits close family members of the victim (or those in loco parentis) from sitting in judgment of those accused, or convicted, of harming their relatives. Case law and professional standards uniformly proscribe argument that, by implication or otherwise, instructs jurors to disregard their duty to be impartial, unprejudiced, disinterested, equitable and just. Trial counsel in this case, with considerable emphasis, directed the members to place themselves in the position of parent and promote, through sentencing, a personal interest-protecting their daughters, present or future. Trial counsel further requested personal consideration from the members in protecting his daughters:
In coming to your decision now, you must determine how long it will be until you all, representing society, want this rapist walking among your daughters. This man, of course, had forcible sodomy. How long do you think you want him walking among our daughters? ”
How many days do you want to go by before you let this man out among your daughters — our daughters.
Record at 219-220, 222 (emphasis added). The argument was improper.
Military Judge’s Duty
A military judge has a sua sponte duty to ensure that an accused receives a sentence which is not the product of an improper inflammatory argument. United States v. Shamberger, 1 M.J. 377 (C.M.A. 1976). Depending upon the degree of erroneous comment, the trial judge may be required to declare a mistrial, interrupt the argument, or give curative instructions. In this case, the trial judge did nothing.
Waiver and Prejudice
As we stated in our original opinion, it is the odious nature of these offenses and the high probability of the members’ emotional response to trial counsel’s improper argument, within that context, that convinces us that appellant’s due process rights were adversely affected. United States v. Williams, 23 M.J. at 527. The facts are well described in the lead opinion and it is fair to say that the sentence imposed is not excessive. The majority holds that even if the argument was improper, the Manual for Courts-Martial mandates waiver. The Supreme Court opinions, promulgated standards of professional responsibility, and military case law, cited in our original Williams opinion, and the facts and circumstances of this case, convince us that the error was not waived and requires corrective action.
We believe that the majority’s opinion reflects, and is essentially based upon, the conclusion that appellant’s sentence is just. In our view, an appellate judge’s independent conclusion or personal view of a just result under a particular set of facts is an inappropriate appellate measure of the effect of improper sentencing argument. Such a standard can justify the affirmance of sentences regardless of the nature or degree of unfairness or error. The proper inquiry is whether the error “so infected *786the trial with unfairness as to make the resulting [sentence] a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (emphasis added).
We have concluded that the court members’ deliberations on sentencing were unfairly compromised by the trial counsel’s improper argument. In reviewing the record we note the absence of mitigating factors which might have balanced out the prejudicial impact to this appellant. Not only did the military judge fail to correct the argument error committed at pages 219-220 of the record of trial, but following the improper argument, during his instructions on sentencing (after outlining factors to be considered) stated: “You may consider any other factor that you’ve heard in court today which is properly before you that I haven’t commented on.” Record at 227. During sentencing instructions the military judge did not inform the members that the arguments were not evidence. The trial counsel’s improper argument was not in response to or invited by any comment made by the defense counsel. The defense counsel did not in closing argument in any way rebut, turn the argument against the government, or express disapproval of an argument designed to divert the members from impartiality. Cf. Darden v. Wainwright, — U.S. -, 106 S.Ct. 2464, 2472-473, 91 L.Ed.2d 144 (1986). In short, the improper argument was not challenged by the defense counsel or the military judge within a context where both of them, as well as the trial counsel, had a duty to protect the appellant’s right to a fair trial. As an additional matter, we note that appellant did not testify or present evidence during the sentencing portion of the trial. No instruction was requested or given to the members that no adverse inference would be drawn from appellant’s failure to testify.
In this case not only were the members told by the trial counsel to consider it their duty as court members to protect their daughters, but the improper argument was reinforced inadvertently by the military judge’s instructions on sentencing. The argument was not defused or lost within the context of appellant’s presentencing presentation — there was none. Essentially, appellant was sentenced based upon the facts of the crime and the sentencing arguments. Implicit in appellant’s request for trial by members was an expectation that the members would be impartial; trial counsel’s improper argument, under the facts and circumstances of this case, undermines our confidence that he was sentenced by such court members.
The nature of the error and the state of the record convince us that reassessment of the sentence would be inappropriate. Accordingly, we would set aside the sentence and order a rehearing by the same or a different convening authority.
APPENDIX
TC: Members of the court, my last words to you 40 minutes ago was that the man who sits 15 feet from you is a rapist. You obviously agreed with the government’s contention. Now, your mission is to determine what should be done with this rapist. Now, in determining this we would ask each of you, representing the Army, representing society, to determine what is appropriate. What is appropriate for Private Williams? What will it take to impress on Private Williams that [sic] he did was wrong — was terribly wrong? You also must consider what is necessary for society. In coming to your decision now, you must determine how long it will be until you all, representing society, want this rapist walking among your daughters. This man, of course, had forcible sodomy. How long do you think until you want him walking among our daughters? Now, who is this man? A good soldier? No, he’s done drugs, got a 15. One stupid mistake? That one is not going to work. He knew what he was doing. He thought he could get away with it; he thought he could get over, but he didn’t. Who knows him? You’ve read the statement given by Douglas. Just to ponder a few thoughts here, in 2 days after [sic]. Williams asked me to *787return to the car and ask the girl if she would have sex with them. Williams told me I don’t know how to do it right and went to the car. Williams and Biggs were going to force the girl to have sex. Williams told her if she did not suck his dick, she was not going to be taken home. Williams said he was in charge, and we would all do what he said. That’s the man. That’s the man that you’ve got to determine an appropriate sentence for. The judge asked you all this morning, first thing; he said, I’m advising you that these offenses carry a life penalty. Does that frighten you? Does that make any of you feel at ease [sic] about being a member here today? You all said it didn’t. Why would there be a crime that you could put a man in jail for his life? What kind of crime would have to be shown to you to justify that? A crime that shows a total disregard for human values. This woman was treated like a piece of meat, was passed from one man to another, was violated in every orifice on her body. That’s the man. That’s the crime. This is one of the worse [sic] crimes that can be committed. When you’re thinking about appropriate sentence, think of Private Williams as he sits here all quiet before you. Does he look like an animal? No. Has he behaved himself today? Yes, he looks like a pretty nice guy. When you’re thinking about appropriate sentence, think of that Williams. Think of Williams on the night when he and his friends gang raped Ms. Dilg. Think of the night when this Williams who was — now he’s so quiet and calm, was directing the show. When this Williams called off his friend who couldn’t get the girl, who couldn’t persuade the girl; this Williams who pulled off her clothes, this Williams who raped and committed forcible sodomy on that young woman. Think about that young woman, not poor Private Williams as he sits here before you. Think of the agony that this woman went through in determining how long it’ll be until any of you is willing to take the chance on imposing that agony on someone else. Think of the shame that this woman feels. Think of the scars on this woman. I’m not talking about her vaginal bleeding. There are no scars to her body, but this woman who, for the rest of her life, will have this scar on her mind where it can’t be cured. No plastic surgery can be done on a scar like this. This is something this woman will live with everyday of her life. Everyday of her life she will suffer from this man. How many days do you want to go by before you let this man out among your daughters — our daughters. This is the man; these are the crimes that warrant life imprisonment. This man cannot be allowed to mingled [sic] among good soldiers or innocent women. He has no control. He saw what he wanted, and he took it. That’s the man that you’re going to sentence, and for these reasons, for the total lack of self-control, these reasons are why you must insure for the good of society— not just the Army; the Army is huge, but for the good of society — how long do you want it to be before this man walks among 19 year old girls again. He should never be given this opportunity. Is the government asking for a pound of flesh? Is the government asking that this man be dealt with unreasonably? What kind of behavior did this man show? Was he reasonable with the way that he dealt with someone in his control? Show him the same mercy that he showed Ms. Dilg. What mercy did he show? Douglas, again, because he told you eventually it got to the point where even Douglas said no more, leave her alone. What about this man? I want more; she’s sitting between us. We’re going to get some more on the way home. This man wasn’t satisfied. That’s the mercy he showed his victim. That’s how much mercy he should be showed [sic] today.
TC: Thank you, members.
Record at 219-222.
. The Golden Rule argument urges the jurors to place themselves or their families in the victim’s situation and decide the case from that perspective. Black’s Law Dictionary 623 (5th ed. 1979).
. In the future, trial defense counsel would be well-advised, in appropriate cases, to consider requesting an instruction from the military judge that advises court members not to adjudge a sentence out of fear of potential danger to themselves or their loved ones and not to punish the accused for uncommitted crimes.