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).
United States v. Harvey, 64 M.J. 13 (where the question of unlawful command influence involves court members, MRE 606(b) limits the governmentís 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 memberís or any other memberís mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the memberís 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 commanderís presence in the courtroom and their relationship with him; no one could question the members, however, as to the impact of the convening authorityís presence in the courtroom on any memberís mind, emotions, or mental processes).
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 Commanderís 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 appellantís 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 appellantís 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 appellantís court-martial who attended the Commanderís Call unfairly based appellantís 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 authorityís message at the Commanderís 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. ß 837; CAAF also has held that regardless of a commanderís 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 membersí 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 Governmentís 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 memberís or any other memberís mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the memberís 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 commanderís comments, but the members may not be questioned regarding the impact of any memberís statements or the commanderís comments on any memberís 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 memberís mind or emotions as influencing a member to assent to or dissent from the findings or sentence or a memberís 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 appellantís 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 authorityís message, that judge shall set aside appellantís sentence and order a sentence rehearing).
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 commanderís comments had an adverse impact on the memberís 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 commanderís 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 observerís consideration and to whether the influence of command placed an intolerable strain on public perception of the military justice system).
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).
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).(reasonable doubt concerning the use of improper panel selection criteria will not be tolerated in the military justice system).