A military appeals court has upheld the conviction of Senior Airman James T. Cunningham, who was sentenced in 2021 to 18 years in federal military prison for shaking and punching his son Zachariah to death in 2020. (Pennington County Sheriff's Office)
An airman who was found guilty of murder after punching and shaking his 6-month-old son to death lost an appeal of his 18-year sentence in a ruling by the military’s highest court.
The decision released Friday by the U.S. Court of Appeals for the Armed Forces upheld the prison term that Senior Airman James Cunningham received at his 2021 court-martial, in which he was convicted of killing his infant son Zachariah.
Cunningham, who was 26 and stationed at Ellsworth Air Base in South Dakota at the time of the killing, argued a slideshow presented during the trial was prejudicial.
The slideshow, which was made by the boy’s mother, included somber music, videos and stock photographs of what the child’s future might have been like.
However, the appellate court ruled the slideshow images did not offer any information beyond what was presented during sentencing testimony.
“There is no indication in this record that the military judge allowed the emotional aspects of the presentation to affect him to a point that he departed from his duty to determine an appropriate sentence in a fair, objective and unbiased manner,” Judge John Sparks wrote in the majority opinion, which included three of the five judges.
Cunningham’s lawyers also argued prosecutors made improper sentencing arguments at trial and his right to a unanimous verdict had been violated.
In rejecting the claim regarding the sentencing arguments, the majority wrote they had no reason to decide on that question because Cunningham’s lawyers did not raise any such concerns at trial.
In a partially dissenting opinion, two judges agreed Cunningham had waived his objections to the sentencing arguments of the prosecution in the court-martial. But they differed regarding the slideshow.
“I agree that the PowerPoint presentation might have been more prejudicial if it had presented more new information,” Judge Gregory Maggs wrote. “But that does not make the PowerPoint presentation any less material or negate its tendency to influence the sentencing decision.”
The court opinion did not delve into Cunningham’s claim of a right to a unanimous verdict, continuing a string of defeats for military defendants arguing convictions based on split jury verdicts are unconstitutional.
The standard is different in the civilian justice system. A 2020 U.S. Supreme Court ruling in Ramos v. Louisiana invalidated state laws that allowed split verdicts to result in a conviction. Federal courts long have required that guilty verdicts be unanimous.
The 18-year sentence given to Cunningham was slightly less than the 20 to 25 years sought by prosecutors. In addition, Cunningham was sentenced to a dishonorable discharge, forfeiture of all pay and allowances and reduction to the rank of E-1.
Prosecutors said at trial that Cunningham lied three times before confessing to punching his son at their home in Rapid City, S.D. Medical evidence showed the baby died from being shaken and hit multiple times, they argued.
The defense argued the baby suffered injuries when he fell from a kitchen counter where Cunningham had placed him.
