2019 (October Term)
United States v. Washington, 80 M.J. 106 (with respect to unlawful command influence, references to departmental or command policies made before members have been condemned; however, while certainly not a best practice, and one fraught with peril, such references do not, without more, constitute unlawful command influence).
(although Article 37, UCMJ, prohibits unlawful command influence, in this case, the evidence of the SHARP training did not violate this prohibition where the SHARP training was not done for the purpose of influencing the trial, no one argued at trial that the SHARP training reflected the law, the military judge properly instructed the members, and the members agreed that they could follow the military judge’s instructions).
United States v. Bess, 80 M.J. 1 (while racial discrimination is clearly unconstitutional, absent intentional racial discrimination or an improper motive or criteria in the selection of members, the mere fact a court-martial panel fails to include minority representation violates neither the Fifth Amendment nor Article 37, UCMJ’s prohibition against unlawful command influence).
(an accused has an absolute right to a fair and impartial panel, guaranteed by the Constitution and effectuated by Article 25, UCMJ’s member selection criteria and Article 37, UCMJ’s prohibition on unlawfully influencing a court-martial; neither of those articles requires affirmative inclusion).
(Article 25(d)(2), UCMJ, provides in relevant part that when convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament; race is not one of the criteria; and by its terms, Article 37(a), UCMJ, expressly prohibits the convening authority from selecting members in an attempt to influence the outcome of the court-martial, on the basis of race or otherwise).
(Article 37(a), UCMJ, provides in part 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 other military tribunal or any member thereof, in reaching the findings or sentence in any case; court stacking is a form of unlawful command influence).
(in this case, where (1) the record shows that the convening authority neither knew nor had reason to know the races of nine of the ten members whom he detailed to appellant’s court-martial, (2) the record does not reveal with certainty the actual racial makeup of appellant’s panel, (3) the record contains no findings of fact by the CCA with respect to allegations regarding the races of members in other courts-martial, and (4) at most, appellant presents a potential anomaly with a few cases within a short period of time, with no evidence whatsoever of intentional discrimination, appellant failed to carry his burden to show unlawful command influence by more than mere speculation; the mere absence of African-Americans on appellant’s panel did not itself raise reasonable doubt as to the procedure used to select his panel).
(in this case, appellant failed to show apparent command influence where a fully informed observer would know the convening authority only knew one member’s race, that no member knew or worked with the convening authority, and, taking a defense declaration at face value, the convening authority was amenable to including diverse members when asked to do so, which appellant failed to do prior to trial; as such, appellant presented no reasonable grounds for an objective, disinterested observer, fully informed of all the facts and circumstances (to include the legal fact that no one is entitled to members of the same race in either a military or civilian court) to harbor a significant doubt about the fairness of the proceedings).
2017 (October Term)
United States v. Riesbeck, 77 M.J. 154 (where selection of members on an impermissible basis is raised by the evidence, the government needs to present affirmative evidence of benign intent beyond a reasonable doubt; if not, the ready inference and legal consequence is that the improper selection was made to affect the result, a form of unlawful command influence).
(improper member selection can constitute unlawful command influence, which cannot be waived).
(where the seven-member panel that convicted and sentenced appellant for rape was composed of five women, four of whom were victim advocates, that is, persons trained to provide support and counseling to victims of rape and sexual assault, any suggestion that the selections were made to promote inclusiveness, ensure a representative panel, or for an otherwise benign purpose was specious; first, appellant was neither a woman nor a victim advocate, but rather was a male, accused of rape; second, as a matter of common sense, a panel composed of seventy percent woman was not statistically or otherwise representative, of a female population comprising less than twenty percent of the total pool of potential panel members; and third, the findings of the military judge made clear that the severe discrepancy between the percentage of available female panel members and the final makeup of appellant’s panel was not reflective of a good-faith attempt to either comply with the dictates of Article 25, UCMJ, or create a more representative or an inclusive panel, but rather was riddled with intentional efforts to maximize the number of women on the panel because the commanding officers thought, either consciously or unconsciously, that it was very important to have a large number of women on the panel in this sexual assault case; given that the government presented no evidence of benign intent, it appears that those involved in the selection process believed court stacking based on gender would influence the result of appellant’s court-martial; appellant raised the issue of improper member selection on the basis of gender, and the government failed to prove at all, let alone beyond a reasonable doubt, that the improper member selection process was not motivated by gender-based court stacking; additionally, the government has not met its burden of showing beyond a reasonable doubt that appellant received a fair trial from an impartial panel, free from the effects of unlawful command influence).
(court stacking is a form of unlawful command influence, and has the improper motive of seeking to affect the findings or sentence by including or excluding classes of individuals on bases other than those prescribed by statute).
(the absence of direct evidence in the form of testimony of malintent and impure motive with regard to member selection does not mean that there is no evidence that the convening authorities or their subordinates were motivated by the intent to achieve a particular result as to findings or sentence; rather, as in other instances of asserted unlawful command influence, where the government fails to meet its burden to rebut the allegation of improper member selection, as a matter of law, appellant has established unlawful command influence).
(in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt).
(unlawful command influence is the mortal enemy of military justice).
(where manipulation of the court member selection process is fostered or perpetuated by military authorities through ignorance or deceit, it substantially undermines the public’s confidence in the integrity of the court-martial proceedings).
(in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused).
(in this case, the government failed to show that it has met the burden to show, beyond a reasonable doubt, that appellant received a fair trial from an impartial panel; the very panel that tried, convicted, and sentenced appellant was the same panel hand-picked by those charged with selecting appellant’s court-martial panel; the government’s case was weak, primarily based on the testimony of the putative victim, who was unable to remember many of the events surrounding the crime due to alcohol use and whose testimony was controverted by other witnesses at trial; in fact, the government’s case was so weak that the Article 32 investigating officer recommended the dismissal of the Article 120, UCMJ, charges against appellant; in addition, the military judge failed to conduct even a rudimentary investigation into appellant’s claims of improper member selection, completely abdicating his responsibility to cleanse appellant’s court-martial of the unlawful command influence; and the CCA, rather than correct the obvious error, did not embrace its proper and frankly necessary role in the context of member selection and unlawful command influence, but rather rationalized the error away as a benign effort to seek inclusiveness; the error in this case is both so obvious and so egregious that it adversely affected not only appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system).
2006
United
States v. Harvey, 64 M.J. 13 (where the question of unlawful
command
influence involves court members, MRE 606(b) limits the government’s
opportunity to establish that the unlawful command influence had no
impact on
the proceedings; this rule prohibits inquiry into two types of
matters:
(1) any matter or statement occurring during the course of the
deliberations,
and (2) the effect of anything upon a member’s or any other member’s
mind or
emotions as influencing the member to assent to or dissent from the
findings or
sentence or concerning the member’s mental process in connection
therewith; the
rule has three exceptions to the first prohibition, one of which
permits
testimony about any matter or statement occurring during the
deliberations when
there is a question whether there was unlawful command influence; the
exceptions, however, do not permit circumvention of the second
prohibition
(inquiry into the effect on a member); in light of MRE 606(b), there
could only
be an inquiry of the members regarding what, if anything, was said
during
deliberations about the commander’s presence in the courtroom and their
relationship with him; no one could question the members, however, as
to the
impact of the convening authority’s presence in the courtroom on any
member’s
mind, emotions, or mental processes).
2003
United
States v. Dugan, 58 MJ 253 (a court member
expressed
concern in a letter to the convening authority that (1) some members
stated a
bad-conduct discharge was a "given" in this case, and (2) some
members made statements suggesting they were influenced by the message
put out
by the convening authority at his Commander’s Call; as to these
concerns, CAAF
concludes that they make a DuBay hearing necessary to determine
whether
unlawful command influence existed during the sentencing phase of
appellant’s
court-martial; under the circumstances of this case, such statements
fall
squarely within the unlawful command influence exception of Mil.R.Evid.
606(b)
and are not protected from disclosure).
(the member's letter constitutes some evidence that unlawful command
influence may have taken place during the sentencing phase of
appellant’s court-martial
where (1) it is more than mere speculation because it is detailed and
based on
her own observations; and (2) it contains assertions which, if true,
suggest
that members of appellant’s court-martial who attended the Commander’s
Call
unfairly based appellant’s sentence, at least in part, on a concern
they would
be viewed unfavorably by the convening authority (their commanding
officer) if
they did not impose a sentence harsh enough to be consistent with the
convening
authority’s message at the Commander’s Call that drug use is
incompatible with
military service).
(CAAF has long held that the use of command meetings to purposefully
influence the members in determining a court-martial sentence
constitutes
unlawful command influence in violation of Article 37, UCMJ, 10 U.S.C.
§ 837;
CAAF also has held that regardless of a commander’s intent, the mere
confluence
of the timing of such meetings with members during ongoing
courts-martials and
their subject matter dealing with court-martial sentences can require a
sentence rehearing).
(command presence in the deliberation room, whether intended by the
command
or not, chills the members’ independent judgment and deprives an
accused of his
or her constitutional right to a fair and impartial trial).
(when unlawful command influence has been directed at court members,
the
Government’s ability to persuade the DuBay judge that the
unlawful
command influence had no prejudicial impact on the court-martial is
limited by
Mil.R.Evid. 606(b); this rule prohibits inquiry into two types of
matters: (1)
any matter or statement occurring during the course of the
deliberations, and
(2) the effect of anything upon a member’s or any other member’s mind
or
emotions as influencing the member to assent to or dissent from the
findings or
sentence or concerning the member’s mental process in connection
therewith).
(Mil.R.Evid. 606(b) permits testimony about any matter or statement
occurring during the deliberations when there is a question whether
there was
unlawful command influence; this exception does not permit
circumvention of the
prohibition against inquiry into the effect on a member; thus, in this
case,
Mil.R.Evid. 606(b) permits voir dire of the members regarding
what was
said during deliberations about the commander’s comments, but the
members may
not be questioned regarding the impact of any member’s statements or
the
commander’s comments on any member’s mind, emotions, or mental
processes; in
conducting the DuBay proceedings, the military judge shall not voir
dire any member as to the effect of anything upon a member’s
mind or
emotions as influencing a member to assent to or dissent from the
findings or
sentence or a member’s mental process in connection therewith).
(if the military judge who presides at the DuBay is not
satisfied
beyond a reasonable doubt that unlawful command influence did not exist
during
the sentencing phase of appellant’s court-martial, or that one or more
members
did not exert the influence of superior rank on a junior member or
purport to
wear the mantle of the convening authority by conveying to the other
members
his or her interpretation of the convening authority’s message, that
judge
shall set aside appellant’s sentence and order a sentence rehearing).
2002
United
States v. Stoneman, 57 MJ 35 (defense counsel,
trial
counsel, and the military judge must fully question the court members
during voir
dire to determine whether a commander’s comments had an adverse
impact on
the member’s ability to render an impartial judgment - voir dire,
however, may not be enough, and witnesses may be required to testify on
the
issue of unlawful command influence).
(further proceedings were necessary to determine if the
court-martial was
tainted unlawful command influence where: (1) there was no factfinding
hearing;
(2) there was no analysis under the analytical framework for command
influence
at the trial level; (3) as a result, there are no trial-level findings
of fact
regarding the content, tone, and impact of the brigade commander’s
leadership
training session; (4) there was no way to determine if additional
witnesses
would shed light on the issue; (5) the record of trial does not provide
an
appellate court the opportunity to observe the demeanor of the court
members
with respect to any influence over them).
(the question whether there is an appearance of unlawful command
influence
is judged objectively, through the eyes of the community; demeanor of a
potentially influenced court member is a measure of actual bias, and it
is also
relevant to an objective observer’s consideration and to whether the
influence
of command placed an intolerable strain on public perception of the
military
justice system).
2001
United
States v. Baldwin, 54 MJ 308 (the use of command
meetings
to purposefully influence the members in determining a court-martial
sentence
violates Article 37, UCMJ; the mere confluence of the timing of such
meetings
with members during ongoing courts-martials and their subject matter
dealing
with court-martial sentences can require a sentence rehearing).
1999
United
States v. Roland, 50 MJ 66 (members may not be selected
or
systematically excluded solely on the basis of rank, nor may selection
process
seek to pack a court to achieve a desired result).
United
States v. Bertie, 50 MJ 489 (the intent and purpose of
the
convening authority in selecting individuals to serve as court-martial
members
is an essential factor in determining compliance with Article 25(d)(2),
UCMJ).