MISCELLANEOUS MATTERS: Command Influence: Generally

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (Article 37, UCMJ, states that no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any member thereof; while statutory in form, the prohibition can also raise due process concerns, where for example unlawful influence undermines a defendant’s right to a fair trial or the opportunity to put on a defense). 

(allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system; the test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence arises where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(where there is evidence in the record of an effort to unseat a military judge based on the trial counsel’s animosity toward the military judge, to secure a more favorable ruling, or to cause the assignment of an alternative military judge, where the presiding military judge is otherwise qualified to serve, an appearance of unlawful command influence is raised). 

(in this case, the appearance of unlawful influence was raised because the government used its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias; further, the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding; an objective, disinterested observer, fully informed of these facts and circumstances, might well be left with the impression that the prosecution in a military trial has the power to manipulate which military judge presides in a given case depending on whether the military judge is viewed as favorable or unfavorable to the prosecution’s cause based on the government’s access to a military judge’s personnel file and through access to the military judge’s chain of command).    

(in this case, where the government obtained the military judge’s disqualification by using its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias and where the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding, the government failed to demonstrate beyond a reasonable doubt that the appearance of unlawful influence did not affect the findings or the sentence where the new military judge issued a more favorable ruling on privilege and the same persons who had accessed the military judge’s official file and made ex parte contact with the first military judge’s supervisor were not barred from further participation in the case). 

(in this case, where the government obtained the military judge’s disqualification by using its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias and where the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding, the appearance of unlawful influence required dismissal of the case with prejudice, rather than retrial; here, the unprofessional actions of the government improperly succeeded in getting the military judge to recuse himself from appellant’s court-martial; were a rehearing authorized, the government would obtain the result it sought to obtain through inappropriate means - a trial with a different military judge; thus, any remedy short of dismissal at this stage would effectively validate the government’s actions; in addition, a rehearing as a remedy would occur over two-and-a-half years after appellant’s original court-martial; appellant had a right to a timely trial before a military judge who had been properly detailed to hear the case, and through no fault of his own, appellant was denied this right as a result of the government’s inappropriate actions causing the disqualification of a military judge; finally, the actions at issue strike at the heart of what it means to have an independent military judiciary and indeed a credible military justice system). 

2009 (September Term)


United States v. Douglas, 68 M.J. 349 (once unlawful command influence is raised at the trial level, a presumption of prejudice is created; to affirm in such a situation, an appellate court must be convinced beyond a reasonable doubt that the unlawful command influence had no prejudicial impact on the court-martial). 

 

(Article 37(a), UCMJ, prohibits unlawful command influence; this prohibition includes attempts to interfere with access to witnesses; dismissal of the charges is one alternative if unlawful command influence is found). 


(a military judge can intervene and protect a court-martial from the effects of unlawful command influence by taking proactive, curative steps to remove the taint of unlawful command influence and ensure a fair trial; as a last resort, a military judge may consider dismissal when necessary to avoid prejudice against the accused; dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings; however, when an error can be rendered harmless, dismissal is not an appropriate remedy; dismissal is a drastic remedy and courts must look to see whether alternative remedies are available). 

 

(after finding that the no-contact orders and negative behavior of the accused’s military supervisor discouraged witnesses from providing character statements for the accused and resulted in unlawful command influence, the military judge acted within her discretion in crafting a remedy aimed at ameliorating the effects of the supervisor’s actions rather than dismissing the charges; the military judge’s remedy was specifically tailored to removing the roadblocks to obtaining character statements and alleviating the harm in this case and included: (1) providing a continuance to enable trial and defense counsel to co-author a memorandum from the accused’s commanding officer; (2) making the memorandum available to the defense; (3) allowing the defense to decide on the memorandum’s use and to pursue such witnesses as it chose; and (4) strongly recommending that (a) the accused be removed from his supervisor’s supervision and assigned to another office selected by the accused’s commander, (b) the supervisor be issued an order from his commander to immediately cease and desist communications regarding the accused and the investigations, charges, and court-martial, and (c) the government immediately rescind both the cease and desist order and the order prohibiting the accused from contacting members of his unit). 

(unlawful command influence is the mortal enemy of military justice; however, it is not the mortal enemy of the military justice system because of the number of cases in which such influence is at issue, but rather because of the exceptional harm it causes to the fairness and public perception of military justice when it does arise). 

(while the military judge stands watch as the last sentinel in the military justice system, once unlawful command influence is raised pretrial or at trial, the responsibility to protect the military justice system against unlawful command influence is not one unilaterally thrust upon the shoulders of the military judge; rather, it is a shared responsibility; the military judge, having crafted a reasonable remedy, is not required, in the face of apparent satisfaction from the defense, to intuit possible objections for the defense and then raise them sua sponte). 

(while the defense counsel, after a lengthy continuance to implement the military judge’s remedy for the unlawful command influence, had no further objections or motions and did not request additional time, the burden of proof was on the government, and the record did not itself reveal that all portions of the remedy crafted were implemented; thus, while the accused’s acquiescence and silence were factors to consider, factors that make this a close case on this record, given that the burden of proof was on the government, the CAAF could not be convinced beyond a reasonable doubt that the taint from the unlawful command influence did not prejudice the accused by depriving him of the benefit of testimony from character witnesses during the findings and sentencing portions of his court-martial, where the accused presented no favorable character testimony during his court-martial, the government had not shown that presentation of a good character defense was unfeasible, and the government had not met its burden of showing that the character evidence would have been completely ineffective; further, the record reveals that the accused maintained his innocence even after his conviction and that much of the evidence against him came solely from the victim’s own testimony).

(the CAAF has not applied the doctrine of waiver where unlawful command influence is at issue).

(when a military judge crafts a reasonable and tailored remedy to remove unlawful command influence, and if the record reflects that the remedy has been implemented fully and no further objections or requests were made by the defense, then rather than requiring the government to prove a negative, an appellate court would be satisfied that the presumptive prejudice had been eliminated; however, when the record fails to include evidence that key components of the remedy were implemented, the presumption of prejudice flowing from the unlawful command influence has not been overcome; the government must then find an alternative way to meet its burden). 

2008 (September Term)


United States v. Ashby, 68 M.J. 108 (unlawful command influence has often been referred to as the mortal enemy of military justice; Article 37(a), UCMJ, provides in relevant part that no person subject to the UCMJ may attempt to coerce or influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case; even the mere appearance of unlawful command influence may be as devastating to the military justice system as the actual manipulation of any given trial; unlawful command influence directed against prospective witnesses has been repeatedly condemned). 

 

(communications between various senior military officers and members of a command investigation board [CIB] that investigated an aircraft mishap involving appellant did not demonstrate that CIB members were wrongfully influenced and subject to unlawful command influence, where appellant failed to show that the senior military officials’ interest in the CIB was anything other than proper, official, and lawfully directed at completing a quality and thorough investigation).

 

(public involvement of senior military officers in the aftermath and investigation of highly publicized aircraft mishap involving appellant did not demonstrate that the actions of any of those officials improperly influenced appellant’s court-martial, where appellant failed to point to any specific witnesses who decided not to testify because of alleged statements by senior military officials or any other specific facts that the court-martial process was tainted by unlawful command influence). 

 

(in addressing whether the appearance of unlawful command influence has been created in a particular situation, an appellate court considers, objectively, the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; it will find the appearance of unlawful command influence where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

 

(under the facts of this case, the comments made by senior military officials in the aftermath of an aircraft mishap involving appellant and their official involvement in the command investigation board [CIB] of the incident could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding, where appellant failed to show that the senior military officials’ interest in the CIB was anything other than proper, official, and lawfully directed at completing a quality and thorough investigation, and where appellant failed to point to any specific witnesses who decided not to testify because of alleged statements by senior military officials or any other specific facts that the court-martial process was tainted by unlawful command influence; appellant was acquitted on all of the charges that were filed after the CIB issued its recommendation, and the CIB was neither aware of nor considered the obstruction of justice conduct underlying the conduct unbecoming, Article 133, UCMJ, charges at this court-martial; unsurprisingly, appellant was unable to allege facts which, if true, would constitute unlawful command influence when the CIB members were unaware of the conduct underlying the current charges). 


2008 (Transition)

 

United States v. Reed, 65 M.J. 487 (at trial, the burden of raising the issue of unlawful command influence rests with the defense; the defense must:  (1) show facts which, if true, constitute unlawful command influence, and (2) show that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings; the threshold for raising the issue at trial is low, but more than mere allegation or speculation; the defense is required to present some evidence of unlawful command influence). 

 

(if the defense meets the burden of raising the issue, the burden shifts to the government; the government must (1) disprove the predicate facts on which the allegation of unlawful command influence is based, (2) persuade the military judge that the facts do not constitute unlawful command influence, or (3) prove at trial that the unlawful command influence will not affect the proceedings; depending on the nature of the alleged unlawful command influence and other pertinent circumstances, the government may demonstrate that unlawful command influence will not affect the proceedings in a particular case as a result of ameliorative actions; whichever tactic the government chooses, the quantum of proof is beyond a reasonable doubt). 

 

(in the course of addressing command influence issues, military judges and appellate courts must consider apparent as well as actual unlawful command influence).

 

(where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that an appellate court reviews de novo). 

 

(with respect to an appellant’s contention that a case was tainted by the appearance of unlawful command influence, an appellate court’s evaluation is highly case-specific; in addition to considering the specific words at issue in the context of the charged offenses, it also takes into account factors such as the means and scope of dissemination, remedial action within the command in general and with respect to potential court members in particular, the degree to which the record itself demonstrates that the defense has had a full opportunity to explore the issue, whether the government has been forthcoming in its response, and whether the military judge has taken any necessary corrective action). 

 

(in this case, the government met its burden of demonstrating beyond a reasonable doubt that the case was not infected by actual unlawful command influence, where two panel members who had received an email from the convening authority indicating that he was uncompromising about discipline in the leaderships ranks with respect to BAH fraud, were fully questioned during voir dire with respect to whether it had an adverse impact on their ability to render an impartial judgment, the members’ answers demonstrated that they had little specific recollection of the content of the email, they did not perceive that there was a command policy governing disposition of BAH fraud cases, they did feel any pressure as a result of having received the email, and there is no evidence that they believed the command expected a certain result from the court-martial). 

 

(in this case, the government met its burden of demonstrating beyond a reasonable doubt that the fairness of the court-martial proceedings was not tainted by the appearance of unlawful command influence, where after the convening authority sent an email indicating that he was uncompromising about discipline in the leaderships ranks with respect to BAH fraud, the convening authority took prompt remedial action in the form of a corrective email when informed of possible adverse implications of the initial email, where only a small portion of the initial email contained matters of concern, where the record indicated that only a few members of the command had a specific recollection of the details of the email, and where the record contained only isolated accounts of a negative command climate adverse to the defense, none of which impacted witnesses or panel members). 


2006


United States v. Harvey
, 64 M.J. 13 (unlawful command influence is prohibited under Article 37(a), UCMJ). 


(the presence of the convening authority in the courtroom during closing arguments of counsel on findings, coupled with the facts that the convening authority was wearing his flight suit in a case implicating flight safety, that the members knew the identity of the convening authority, and that the senior member of the panel personally knew the convening authority and was a subordinate member of his command, were sufficient to raise the issue of unlawful command influence, and thus the military judge erred in not shifting the burden on the issue to the government).  


United States v. Lewis
, 63 M.J. 405 (unlawful command influence is the mortal enemy of military justice; where it is found to exist, judicial authorities must take those steps necessary to preserve both the actual and apparent fairness of the criminal proceeding; the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial). 


(once unlawful command influence is raised, it is incumbent on the military judge to act in the spirit of the UCMJ by avoiding even the appearance of evil in his courtroom and by establishing the confidence of the general public in the fairness of the court-martial proceedings; this call to maintain the public’s confidence that military justice is free from unlawful command influence follows from the fact that even the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial; thus, disposition of an issue of unlawful command influence falls short if it fails to take into consideration the appearance of unlawful command influence at courts-martial).


2004


United States v. Gore, 60 MJ 178 (Article 37(a), UCMJ, prohibits unlawful command influence by all persons subject to the UCMJ; unlawful command influence is recognized as the mortal enemy of military justice).

 

(the exercise of command influence tends to deprive servicemembers of their constitutional rights; if directed against prospective defense witnesses, it transgresses the accused’s right to have access to favorable evidence). 

 

(the military judge is the last sentinel to protect the court-martial from unlawful command influence; once unlawful command influence is raised, it is incumbent on the military judge to act in the spirit of the UCMJ by avoiding even the appearance of evil in his courtroom and by establishing the confidence of the general public in the fairness of the court-martial proceedings).

(the military judge did not abuse his discretion in dismissing all of the charges with prejudice as a remedy for the egregious unlawful command influence of the convening authority who ordered a chief petty officer not to testify in support of the accused during sentencing and who may have deterred others at the command from testifying on the accused’s behalf; dismissing the charges without prejudice and allowing for a re-referral would not have eradicated the unlawful command influence because it would not have removed the pool of prospective witnesses from that influence).


2003

United States v. Simpson, 58 MJ 368 (the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial; even if there is no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system).

(the prohibition against unlawful command influence does not require senior military and civilian officials to refrain from addressing matters affecting the training of recruits through press releases, responses to press inquiries, and similar communications; when members of the public entrust their sons and daughters to the military training process, they expect to receive accurate and complete information about the quality of the training environment, including the state of discipline; the public also expects military leaders, who exercise both prosecutorial and judicial functions in the military justice process, to exercise due care in developing and executing communications plans when potential military justice actions are pending).

(when those with the mantle of command authority deliberately orchestrate pretrial publicity with the intent to influence the results in a particular case or series of cases, the pretrial publicity itself may constitute unlawful command influence; even the perception that pretrial publicity has been engineered to achieve a prohibited end, regardless of the intent of those generating the media attention, may lead to the appearance of unlawful command influence).

2002

United States v. Stoneman, 57 MJ 35 (once unlawful command influence is raised, it is incumbent on the military judge to act in the spirit of the Code by avoiding even the appearance of evil in his courtroom and by establishing the confidence of the general public in the fairness of the court-martial proceedings; disposition of an issue of unlawful command influence falls short if it fails to take into consideration the concern of Congress and Court of Appeals for the Armed Forces in eliminating even the appearance of unlawful command influence at courts-martial).

2001

United States v. Baldwin, 54 MJ 308 (where appellant’s allegations were sufficient to raise a post-trial issue of unlawful command influence, a DuBay hearing was required to develop a full record of material facts in order to determine appellant’s entitlement to relief).

2000

United States v. Johnson, 54 MJ 32 (where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed by this Court under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that this Court reviews de novo).

United States v. Ayers, 54 MJ 85 (the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial).

(appellant failed to meet his initial burden of showing that comments of senior military leaders dealing with the class of cases under which appellant’s case fell would constitute actual or apparent unlawful command influence on the findings:  (1) views of senior leadership were not injected into appellant’s court-martial; (2) evidence suggests comments in issue were precipitated by events at an entirely different military installation; (3) none of the comments suggest that appellant was guilty; (4) appellant did not link the media publicity to his case; and (5) appellant did not present any evidence that his court-martial appeared unfair as a result of the alleged unlawful command influence).

1999

United States v. Biagase, 50 MJ 143 (unlawful command influence is an error of constitutional dimension requiring that an appellate court not affirm the findings or sentence unless persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the unlawful command influence).

(despite the fact that accused’s confession was distributed within the command and openly discussed, court-martial unaffected by unlawful command influence beyond a reasonable doubt where witnesses disavowed intimidation or fear, the military judge fashioned strong protective measures, all members of chain of command who knew accused testified favorably, and defense counsel affirmed that no witnesses refused to testify).

United States v. Richter, 51 MJ 213 (claim of unlawful command influence in the preferral of charges was waived where appellant did not raise the issue at trial, any necessary evidence was available prior to trial, and appellant was not deterred from raising the issue at trial; defects in the preferral of charges are waived if not raised at trial, unless the failure to raise the issue is itself the result of unlawful command influence).

United States v. Gray, 51 MJ 1 (normally, appellate review is limited to matters presented at trial, but post-trial affidavits are appropriate to decide petitions for new trial under Article 73, to clarify collateral matters such as claims of unlawful command influence or denial of effective assistance of counsel, and to determine whether a post-trial sanity hearing should be ordered).

United States v. Bradley, 51 MJ 437 (staff judge advocate may not engage in conduct which dissuades defense witnesses from testifying truthfully at courts-martial; staff judge advocate’s conversation with a defense witness did not result in any prejudice to the accused where, although the witness lost some enthusiasm for testifying, she decided to testify and did in fact testify, and appellant did not show what, if any, testimony was withheld by the witness as a result of conversation with staff judge advocate).

(there was no unlawful command influence as a matter of fact or law in the content of staff judge advocate’s ex parte conversation with president of court-martial where conversation did not concern appellant’s trial and the defense did not protest president’s further participation in this court-martial once the conversation came to light).

(an article in the base newspaper written by the special court-martial convening authority’s staff judge advocate did not amount to unlawful command influence where:  (1) article was unsigned and basically reported the results of trial; and, (2) quotes attributed to a junior legal officer were consistent with his law enforcement duties and not directed at the clemency process being conducted at a distant installation by the general court-martial convening authority).

(appellant failed to aver sufficient facts to constitute a legal claim of unlawful command influence where he claimed he was denied a court member’s clemency letter, the content of which is unknown except that it may contain inadmissible post-trial statements of the member concerning his prior deliberations in this case, and there was no reasonable probability that the convening authority would have changed his action on this basis).

United States v. Villareal, 52 MJ 27 (where a subordinate convening authority initiated contact with his friend, who was acting as the next superior convening authority, and sought advice on potentially withdrawing from a previously executed pretrial agreement, the contact was not viewed as unlawful command influence).

(any appearance of unlawful command influence created by a subordinate convening authority initiating contact with his friend, who was acting as the next superior convening authority, was cured by transfer of the case to a new convening authority for separate consideration and action).

United States v. Jones, 52 MJ 60 (a threat to prosecute for failure to comply with a pretrial agreement obligating a witness to testify was not an act constituting improper coercion of a witness; rather, it is a statement of the government’s intent supported by the bargained-for rights of the government in the agreement).

United States v. Rockwood, 52 MJ 98 (nothing in record supported claim that the convening authority or anyone within the organization that acted on appellant’s case should have been disqualified, felt humiliated, or felt threatened merely because of appellant’s criticism of command operations; and appellant’s criticism itself was not sufficient to show that trial was infected by unlawful command influence or conflict of interests that affected the fundamental fairness of the court-martial).


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