MISCELLANEOUS MATTERS: Command Influence: Generally

2022 (October Term)

 

2022 (October Term)

United States v. Gilmet, 83 M.J. 398 (Article 37(a)(3), UCMJ, prohibits, in relevant part, any person subject to the UCMJ from attempting to coerce, or, by any unauthorized means, attempting to influence the action of a court-martial). 

(in this case, appellant presented some evidence of UCI where he submitted affidavits establishing that a superior officer, who oversaw slating and assignment process for judge advocates, made statements that caused appellant’s counsel to believe that his military career would be in jeopardy if he continued to represent appellant). 

(contrary to the government’s claim that the military judge circumvented the established UCI framework by excusing defense counsel before it could put on argument regarding its curative measures for the UCI, the military judge’s decision to address the conflict-of-interest issue at the outset was an attempt to determine to what extent the UCI infected the proceedings; once he learned that appellant’s military counsel still believed that a conflict existed, it was within the military judge’s discretion under RCM 801(a)(3) to explore the conflict issue to ensure that the proceedings did not continue until appellant obtained conflict-free counsel or consented to being represented by conflicted counsel; although the military judge’s inquiry concluded with the withdrawal of appellant’s military counsel, he did not abuse his discretion by fully resolving the conflict-of-interest issue before hearing argument from the government regarding whether it met its burden with respect to the UCI).

(an affidavit from the SJA to the CMC stating that service as a defense counsel was vital to overall mission success and would in no way be detrimental to an individual’s career did not cure the conflict of interest between appellant and his military counsel arising out of UCI caused by statements from a superior officer who implied that counsel’s representation of appellant would jeopardize their careers where (1) the affidavit was a generic statement; (2) it was not seen by others who heard the statements, (3) was not produced until after appellant moved to dismiss the charges; (4) did not admonish the superior officer; and (5) the superior officer denied that his remarks were inappropriate)    

(the removal from the slating and assignment process of the superior officer who implied that military defense counsel’s representation of appellant would jeopardize counsel’s career did not cure the conflict between appellant and his counsel arising out of the UCI because the removal did nothing to remedy the perception that other officers would punish military defense counsel in the promotion process where the superior officer described a pervasive mindset throughout the JAG community that caused defense counsels’ careers to stall out because of their service in defense billets). 

(military defense counsel’s selection for a prestigious and competitive billet did not cure the conflict of interest between appellant and counsel arising out of UCI by a superior officer who oversaw the slating and assignment process for judge advocates when that officer implied that counsel’s continued representation of appellant would jeopardize counsel’s career because (1) the  billet assignment was in no way relevant to counsel’s relationship with appellant; (2) counsel was not aware of his selection prior to the superior officer’s remarks; and (3) even if counsel had known about his assignment before the remarks, that one-time assignment had little to do with counsel’s fear that zealously representing appellant would jeopardize futureassignments and promotions). 

(in this case, the UCI caused by statements from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career frustrated the continuation of an established attorney-client relationship and violated appellant’s Article 38(b) rights to counsel; although appellant waived his right to continued representation by his selected counsel, his decision to allow his counsel to withdraw under the pressure of UCI was not an action that could fairly be construed as a voluntary waiver of the attorney-client relationship). 

(in this case, the government’s frustration of the continuance of a proper attorney-client relationship as the result of UCI arising from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career materially prejudiced appellant’s substantial rights to counsel; although the government did not actively restrict counsel from representing appellant, its failure to address the conflict of interest created by the UCI prevented counsel from representing appellant; the government prejudiced appellant’s Article 38 rights by creating the perception in the minds of appellant’s defense counsel that their future in the service would be jeopardized if they continued to zealously advocate for appellant).

2021 (October Term)

United States v. Horne, 82 M.J. 283 (Article 37, UCMJ (2012) prohibits both actual and apparent unlawful command influence). 

(to make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting some evidence that unlawful command influence occurred; this burden on the defense is low, but the evidence presented must consist of more than mere allegation or speculation; once the accused meets the some evidence threshold, the burden shifts to the government to prove beyond a reasonable doubt that either: (a) the predicate facts proffered by the appellant do not exist, or (b) the facts as presented do not constitute unlawful command influence; if the government cannot succeed at this step, it must prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding).    

(unlike actual unlawful command influence, a meritorious claim of the appearance of unlawful command influence does not require prejudice to an accused; instead, the prejudice is what is done to the public’s perception of the fairness of the military justice system as a whole; but that does not mean that prejudice to the accused is irrelevant; a significant factor in determining whether the unlawful command influence created an intolerable strain on the public’s perception of the military justice system is whether the appellant was not personally prejudiced by the unlawful command influence, or that the prejudice caused by the unlawful command influence was later cured). 

(in applying the apparent unlawful command influence doctrine, an appellate court does not require the parties actually to produce credible evidence that any substantial segment of the general population suffered any loss of confidence in the military justice system; instead, the court simply assesses the aggravating and mitigating facts and circumstances and then decides, in its own estimation, whether the government’s conduct placed an intolerable strain upon the public’s perception of the military justice system). 

(while in this case appellant made a prima facie case of apparent command influence, the government proved beyond a reasonable doubt that any such influence did not place an intolerable strain of the public’s perception of the military justice system where although the efforts of trial counsel and the special victim’s counsel to discourage law enforcement agents from interviewing the victim’s husband, an outcry witness, were unwise and inadvisable, and trial counsel, as a judge advocate, should have known better than to discourage a law enforcement investigation into potentially exculpatory evidence, the full litigation of appellant’s allegations before trial reflected well on the military justice system, as the litigation showed that the military judge realized the importance of resolving the matter before trial, all the relevant parties testified about what happened, and the release of the original trial counsel and original service victim’s counsel was a significant ameliorative measure; furthermore, the trial counsel did not have an intent to gain an advantage or an improper motive, and the actions of the trial counsel and the special victim’s counsel did not cause personal prejudice where although the law enforcement investigation was initially delayed, ultimately investigators did interview the victim’s husband). 

(unlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence). 
 
(the lack of personal prejudice is a significant factor in determining whether the unlawful command influence created an intolerable strain on the public’s perception of the military justice system). 

(neither unlawful command influence nor the appearance of unlawful command influence should occur in the military justice system; however, when it occurs, the government may take immediate steps to reduce prejudice to the accused and to ameliorate the situation; although taking ameliorative efforts is not always necessary for proving beyond a reasonable doubt that unlawful command influence did not place an intolerable strain upon the public’s perception, such efforts may reduce the prejudice to the military justice system). 

United States v. Givens, 82 M.J. 211 (claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause). 

(unlawful command influence is generally reviewed as an accusatory (preferral, forwarding, and referral of charges) or adjudicative (interference with witnesses, judges, members, and counsel) claim). 

(in order to determine the applicable rules of law, it is necessary to determine whether an allegation of unlawful command influence in a given case pertains to the preferral of charges, forwarding of charges, referral, trial, or post-trial review). 

(a claim of unlawful command influence in the context of the preferral of charges is a claim of accusatory unlawful command influence, and a claim of accusatory unlawful command influence must be reviewed as pretrial defects and must be held to the deadline set out in RCM 905(b)). 

2020(October Term)

United States v. Proctor, 81 M.J. 250 (Article 37(a), UCMJ, prohibits, in relevant part, any person subject to the UCMJ from attempting to coerce or, by any unauthorized means, influence the action of a court-martial or any member thereof, in reaching the findings or sentence in any case). 

(two types of unlawful command influence can arise in the military justice system: actual unlawful command influence and the appearance of unlawful command influence).    

(unlike actual unlawful command influence, a meritorious claim of the appearance of unlawful command influence does not require prejudice to an accused; instead, the prejudice is what is done to the public’s perception of the fairness of the military justice system as a whole; a significant factor in determining whether the unlawful command influence created an intolerable strain on the public’s perception of the military justice system is whether the appellant was not personally prejudiced by the unlawful command influence, or that the prejudice caused by the unlawful command influence was later cured). 
    
(in this case, appellant established some evidence of unlawful command influence where (1) appellant’s commanding officer held a commander’s call with his entire squadron a year before appellant’s court-martial but after he had knowledge of appellant’s misconduct, (2) his comments concerning an NCO problem mentioned not writing character letters on behalf of those airmen facing disciplinary problems, (3) his comments were interpreted by some airmen to discourage them from assisting in the defense of those airmen, and (4) appellant received no support during sentencing from any of the airmen in his squadron). 

(despite there being some evidence of unlawful command influence in this case, any such influence did not place an intolerable strain upon the public’s perception of the military justice system and would not cause an objective, disinterested observer, fully informed of all the facts and circumstances, to harbor a significant doubt about the fairness of the proceeding where (1) the record includes no evidence that any airman refused to testify or write a character letter in support of appellant for sentencing, (2) the commander’s call was a regularly occurring event that had been scheduled months ahead of time, not a response to any of the events related to appellant’s misconduct, and the commander never mentioned appellant by name or specifically referenced any of his misconduct, (3) over a year passed between the commander’s call and the start of appellant’s court-martial, and during that time, the commander had permanently relocated to another duty station, and (4) there was no reason to believe anything said by the commander had an effect on appellant’s sentencing case because four people wrote character letters on appellant’s behalf, four witnesses testified on appellant’s behalf, and the court-martial panel gave appellant much of what his defense counsel asked for during sentencing).

2019 (October Term)

United States v. Bergdahl, 80 M.J. 230 (an appearance of unlawful command influence arises in a case when an intolerable strain is placed on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(in this case, it was the totality of the circumstances surrounding Appellant’s very serious misconduct rather than any outside influences that foreordained the Army’s handling and disposition of the case; accordingly, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings, and there was no appearance of unlawful command influence). 

(both Article 37, UCMJ, and RCM 104(a), prohibit unlawful command influence).   

(there are two types of unlawful command influence that may arise in the military justice system: actual unlawful command influence and apparent unlawful command influence).   

(based on the plain language of Article 2, UCMJ, Article 37, UCMJ, and RCM 104, a retired member of the United States Navy is capable of committing both apparent and actual unlawful command influence). 

(based on the plain language of Article 22, UCMJ, Article 37, UCMJ, and RCM 104, a sitting president of the United States is capable of committing both apparent and actual unlawful command influence). 

(in this case, a public threat by a Senator, who was also a retired member of United States Navy, to hold a hearing in the Senate Armed Services Committee if appellant received no punishment for desertion to shirk hazardous duty and misbehavior before the enemy provided some evidence of an appearance of unlawful command influence because it had the potential to appear to coerce or influence the outcome of appellant’s court-martial under Article 37, UCMJ, especially because he made them after learning that the preliminary hearing officer in appellant’s case recommended that the charges be referred to a SPCM not empowered to adjudge a BCD, and before the GCMCA made a referral decision). 

(the prohibitions against unlawful command influence did not apply to a presidential candidate who was neither a person subject to the UCMJ as a retiree or otherwise nor a convening authority). 

(in this case, the President’s public reference to and ratification of his inaccurate and inflammatory comments made as a candidate for President that appellant, prior to his conviction, was a deserter and traitor who should be severely punished provided some evidence of the appearance of unlawful command influence because his comments had the potential to appear to censure, reprimand, or admonish a court-martial or any member, military judge, or counsel thereof, with respect to any other exercise of the functions of the court-martial or such persons in the conduct of the proceedings). 

(in this case, the President’s comment on a social networking website in which he referred to the military judge’s sentencing decision in appellant’s case as a complete and total disgrace to the country and military provided some evidence of the appearance of unlawful command influence because this statement appeared both to censure the court-martial with respect to the sentence and had the potential to appear to influence other subsequent functions of the court-martial, such as the convening authority’s review and action, along with the later appellate phases of the case).  

(in this case, a finding of apparent unlawful command influence was not warranted because there was no intolerable strain on the military justice system where (1) compelling evidence was presented at a hearing held pursuant to Article 32, UCMJ, that appellant deserted his unit with intent to shirk hazardous duty and that he engaged in misbehavior before the enemy, and in light of both the severity of these offenses and the strength of the government’s evidence, an objective, disinterested observer clearly would have expected the Army to court-martial appellant for this conduct regardless of any public comments by the President or a Senator, who was also a retired member of United States Navy, (2) although the Article 32, UCMJ, preliminary hearing officer recommended that this case be referred to an SPCM not empowered to adjudge a BCD, the GCMCA in this case, who ultimately referred appellant’s case to a GCM that was empowered not only to adjudge a dishonorable discharge but also to impose a far longer term of imprisonment, stated unequivocally in a sworn affidavit that his decisions in this case were not impacted by any outside influence, he had access to casualty information relating to the military’s search and recovery efforts related to appellant’s disappearance that was not provided to the preliminary hearing officer, and he was aware that any other referral would have been devastating to military morale; (3) appellant chose to plead guilty even after he made aware of the issue of apparent unlawful command issue and the military judge offered him the opportunity to withdraw his guilty pleas, (4) where during sentencing, appellant presented significant mitigation evidence, to include evidence that at the time of the offenses, he likely suffered from several severe preexisting psychiatric conditions such as schizotypal personality disorder that likely contributed to his misconduct and explained in part his exceptionally poor judgment in deserting his post in a combat zone, evidence of the five year torture he endured at the hands of the Taliban, and evidence that upon his return to military custody, he provided significant intelligence to the Army about hostage-taking, (5) where at his sentencing hearing after his guilty plea, and fully aware of his own case in mitigation, appellant specifically recognized that he was deserving of punishment and asked to have a dishonorable discharge imposed upon him, and (6) despite the sensational nature of this case and despite the comments of the President and a Senator advocating for a severe sentence, appellant received no prison time whatsoever). 

(in this case, where appellant pleaded guiltyto deserting his unit with intent to shirk hazardous duty and of engaging in misbehavior before the enemy, where American servicemembers were injured searching for appellant after he chose to desert his post in a combat zone, where the United States government was required to exchange five members of the Taliban who had been held at the US detention facility in Guantanamo Bay, Cuba, in order to secure appellant’s release, and yet the military judge imposed as a sentence only a dishonorable discharge, a reduction in rank, and partial forfeitures of pay after appellant specifically asked to receive a dishonorable discharge, an objective, disinterested observer would decide that the convening authority’s decision not to exercise his discretionary clemency authority on behalf of appellant was a foregone conclusion unaffected by any public comments made about the case by the President and a Senator; furthermore, appellant’s post-trial matters submitted to the convening authority were absent of any formal request for clemency in the form of a sentence reduction; and similarly, in light of these facts, there would be no basis for an impartial observer to believe that the decision by the CCA to affirm the findings and sentence was in any way unfair). 

(in this case, the totality of the circumstances made it clear beyond a reasonable doubt that the comments made by the President and a Senator McCain about appellant, regardless of how troubling, disturbing, disappointing, inaccurate, inappropriate, and ill-advised they were, did not place an intolerable strain upon the public’s perception of the military justice system; rather, the record reflected that the decision-making at each stage of appellant’s court-martial proceedings was unaffected by any outside influences; therefore, an objective, disinterested observer, fully informed of all the facts and circumstances, would not have harbored a significant doubt about the fairness of these proceedings). 

United States v. Washington, 80 M.J. 106 (a party alleging actual unlawful command influence must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness; the threshold for this showing requires more than mere allegation or speculation). 

(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). 

(to establish apparent unlawful command influence, appellant must show an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(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 (for actual unlawful command influence, the accused must show beyond mere speculation that: (1) facts, that if true, constitute unlawful command influence; (2) the prior proceedings were unfair; (3) the unlawful command influence caused the unfairness). 

(apparent unlawful command influence exists when an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

2017 (October Term)

United States v. Barry, 78 M.J. 70 (Article 37(a), UCMJ, prohibits unlawful influence by all persons subject to the UCMJ). 

(a plain reading of Article 2, UCMJ, and Article 37, UCMJ, together makes clear that a DJAG, just like any other military member, is capable of committing unlawful influence; and this is so whether or not he or she acts with the mantle of command authority). 

(the plain language of the unlawful influence article, Article 37, UCMJ, does not require one to operate with the imprimatur of command; a mantle of command authority may be a relevant factor for determining whether there is a violation of Article 37, UCMJ).

(unlawful command influence is the mortal enemy of military justice).
 
(it is fundamental for a military court to protect court-martial processes from improper command influence and to prevent interference from non-command sources as well in order to foster public confidence in the actual and apparent fairness of the military system of justice). 

(actual unlawful influence occurs when there is an improper manipulation of the criminal justice process which negatively affects the fair handling and/or disposition of a case). 

(improper manipulation of the criminal justice process, even if effectuated unintentionally, will not be countenanced; the plain language of Article 37(a), UCMJ, does not require intentional action). 

(Article 37(a), UCMJ, clearly provides that no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of any convening, approving, or reviewing authority with respect to his judicial acts; ‘attempt to coerce’ is a separate form of violation than ‘by any unauthorized means, influence’; here the syntax involves something other than an unbroken series of verbs; instead, an adverbial clause — ‘by any unauthorized means’ — interrupts the sequence of verbs, and is preceded by the coordinating conjunction ‘or’; under such circumstances, it is more appropriate to treat ‘attempt to’ as a modifier only as to the nearest reasonable verb — in this case, ‘coerce’; as such, an ‘attempt to coerce’ necessarily requires intent, whereas influencing an action via unauthorized means violates the statute, regardless of intent).

(in this case, where the impact of the DJAG’s unauthorized guidance on the convening authority’s action was undeniable, actual unlawful influence tainted appellant’s case). 

(in this case, where the DJAG exerted unlawful influence over the convening authority, the error cannot be rendered harmless and no useful purpose would be served by continuing the proceedings; accordingly, dismissal is the appropriate remedy where it was clear that appellant would have received some form of clemency, but the convening authority was less than clear as to what exact action he would have taken absent the unlawful influence; it would be inappropriate to subject appellant to a new convening authority’s action or rehearing, particularly as to do so would only serve to lengthen a protracted litigation that has already reached its natural conclusion; nothing short of dismissal with prejudice will provide meaningful relief; the nature of the unlawful conduct in this case, combined with the unavailability of any other remedy that will eradicate the unlawful influence and ensure the public perception of fairness in the military justice system, compel this result). 

(remedy for unlawful influence must serve to protect the court-martial process and foster public confidence in the fairness of the military justice system). 

United States v. Jerkins, 77 M.J. 225 (no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial in reaching the findings or sentence in any case). 

(in this case, application of the harmless beyond a reasonable doubt standard is consistent with the position that unlawfully influencing a court-martial raises constitutional due process concerns where it undermines an accused’s right to a fair trial). 

2016 (October Term)

United States v. Chikaka, 76 M.J. 310 (the use of a commanding officer before a court-martial to influence the court members into returning a particular sentence implicates unlawful command influence; the question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness). 

(a commander’s opinion as to an appropriate punishment invades the province of the court-martial and constitutes unlawful command influence). 

United States v. Shea, 76 M.J. 277 (in order to raise the issue of apparent unlawful influence, an accused must demonstrate the following: (a) facts, which if true, constitute unlawful command influence; and (b) this unlawful command influence placed an intolerable strain on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding).   

United States v. Boyce, 76 M.J. 242 (unlawful command influence is the mortal enemy of military justice). 

(two types of unlawful command influence can arise in the military justice system: actual unlawful command influence and the appearance of unlawful command influence.

(actual unlawful command influence has commonly been recognized as occurring when there is an improper manipulation of the criminal justice process which negatively affects the fair handling and/or disposition of a case). 

(unlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence; rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused). 

(in support of a claim of an appearance of unlawful command influence, it is sufficient for an accused to demonstrate: (1) facts, which if true, constitute unlawful command influence; and (2) that this unlawful command influence placed an intolerable strain on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(a determination that an appellant was not personally prejudiced by the unlawful command influence, or that the prejudice caused by the unlawful command influence was later cured, is a significant factor that must be given considerable weight when deciding whether the unlawful command influence placed an intolerable strain on the public’s perception of the military justice system; however, such a determination ultimately is not dispositive of the underlying issue of whether the public taint of an appearance of unlawful command influence still remains). 

(in this case, where appellant alleged that the convening authority’s referral of charges was unlawfully influenced by a threat to his position and career by the Chief of Staff of the Air Force, he was not entitled to relief on the basis of actual unlawful command influence where even assuming an unrebutted showing of unlawful command influence, there was an insufficient basis to deduce that appellant personally suffered any prejudice: a convening authority merely applies a reasonable grounds standard in determining whether to refer charges to a general court-martial (which is quite a low standard); there were two witnesses — not just one — who alleged abuse by appellant; there was physical evidence corroborating the allegations against appellant; there was evidence that appellant had previously engaged in similar violence; the Article 32 investigating officer recommended referral of all sexual assault charges; and every subordinate commander and the SJA recommended referral of all charges against appellant). 

(no showing of knowledge or intent on the part of government actors is required in order for an appellant to successfully demonstrate that an appearance of unlawful command influence arose in a specific case; in cases involving unlawful command influence, the key to the analysis is effect — not knowledge or intent).

(in this case, where appellant alleged that the convening authority’s referral of charges was unlawfully influenced by the Secretary of the Air Force and the Chief of Staff of the Air Force, he was entitled to relief on the basis of the appearance of unlawful command influence where an objective disinterested observer with knowledge of the following facts and circumstances would harbor a significant doubt about the fairness of the court-martial proceedings: at the Senate confirmation hearing for the Secretary of the Air Force, a senator commented on the convening authority’s prior decision to set aside the findings and sentence in a sexual assault case and stated that commanders needed to be held accountable for their handling of sexual assault charges; the Chief of Staff informed the convening authority on the same day that the convening authority received appellant’s referral packet that the Secretary had lost confidence in him and that he could either retire at a lower paygrade or wait for the Secretary to remove him from command; the convening authority was vulnerable to additional negative personnel actions by the Secretary at the time that he referred appellant’s charges, and members of the public would question whether the Secretary or the Chief of Staff inhibited the convening authority from exercising his authority in a truly and impartial manner; under the totality of the circumstances, appellant showed some evidence of unlawful command influence by the Secretary of the Air Force and/or the Chief of Staff of the Air Force regarding the referral of the case, and the government failed to meet its burden of proving beyond a reasonable doubt that the underlying facts did not exist or that these facts did not constitute unlawful command influence).

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).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site