Here’s a link to NMCCA’s unpublished opinion in United States v. Salyer, No. NMCCA 201200145 (N-M. Ct. Crim. App. Oct. 23, 2012). Judge Harris wrote for a unanimous panel.
First, a disclosure. While NMCCA uses initials rather than names for most of the players involved, the military judge in question was LtCol Michael D. Mori, who worked in my office during the two years that I was chief defense counsel of the military commission system. I know him well, and that almost certainly influences my reaction to the case.
Cpl Salyer was tried at a contested court-martial for wrongful possession of child pornography based solely on a service discrediting theory. Judge Mori raised the issue of whether, for Article 134 clause 2 purposes, the term “minor” meant someone under 18 or someone under 16. He ultimately ruled that he would instruct the members that “minor” for purposes of Article 134 clause 2 was someone under the age of 16, applying the military justice system’s age of consent to sexual intercourse. After he provided that instruction to the members, after opening statements had been given, and after the government had presented the first day of its case, the trial counsel asked to voir dire Judge Mori about his wife’s age when the two were married 10 years earlier. He indicated that she was 17 when they wed. The government then offered an appellate exhibit — an excerpt from Judge Mori’s service record — establishing that same fact. (Query: how did the trial counsel come to have a copy of that document? NMCCA doesn’t address that question.) The government then moved to disqualify Judge Mori for implied bias. The government argued that his ruling on the definition of minor for Article 134 clause 2 purposes was influenced by the fact that his wife was younger than 18 when they married. Judge Mori took the issue under advisement and then recessed the court-martial for the night.
The next day, Judge Mori disclosed that he had had a conversation with the Circuit Judge, CAPT David Berger – his reporting senior — the previous day during the lunch recess. CAPT Berger said he had received a call from LtCol “JAM,” the SJA for Marine Corps Base Hawaii and the Law Center OIC. In his capacity as Law Center OIC, LtCol JAM was the trial counsel’s supervisor. (The Commander of Marine Corps Base Hawaii wasn’t the CA, so LtCol JAM wasn’t the SJA in the case.) LtCol JAM discussed Judge Mori’s ruling with CAPT Berger and told him that the government was going to move to disqualify Judge Mori. Judge Mori stated on the record that he thought CAPT Berger was raising a concern about his performance. Judge Mori also suggested the possibility that the government’s actions constituted unlawful command influence. Following a recess, Judge Mori recused himself from further participation in the case. Judge Richardson from Camp Pendleton replaced him.
Before trial on the merits resumed, the defense moved to dismiss the charges due to actual and apparent unlawful command influence. Judge Richardson ruled that there was no actual command influence, but that the telephone call from LtCol JAM to CAPT Berger caused apparent command influence. “As a remedy, Col Richardson barred LtCol JAM from all participation in the proceedings, and refused to reconsider any of LtCol Mori’s rulings that were favorable to the defense. The trial then resumed, proceeding to verdict and sentencing with Col Richardson as the military judge.”
NMCCA noted CAAF case law dealing with using supervisory judges as a conduit for command complaints against a military judge and condemning a Marine Corps command’s attempts to suggest that a military judge was involved in a same-sex dating relationship with a counsel who appeared before her, resulting in the military judge’s recusal. See United States v. Mabe, 33 M.J. 200 (C.M.A. 1991); United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006). But NMCCA held “that there was no actual unlawful command influence, and any appearance of unlawful command influence was adequately remedied by the military judge.”
NMCCA adopted Judge Richardson’s finding of fact that LtCol JAM’s purpose for calling CAPT Berger was to give him a heads up that he might need to detail a replacement judge to the case. LtCol JAM didn’t complain to CAPT Berger about any of Judge Mori’s rulings and didn’t try to get CAPT Berger to influence Judge Mori’s rulings. Judge Richardson also found that CAPT Berger had done nothing improper and didn’t try to influence Judge Mori during their phone conversation.
NMCCA stated, “We agree with Col Richardson that this situation does amount to apparent unlawful command influence. Notwithstanding the innocent purpose behind the call, the Government’s actions created the appearance that the phone call was the sort of ‘conduit for complaints’ against a military judge prohibited by the UCMJ.” As previously noted, NMCCA held that Judge Richardson’s remedial measures were sufficient to cure this apparent command influence.
NMCCA concluded that the government’s voir dire of Judge Mori about his wife’s age when they married created neither actual nor apparent command influence. NMCCA emphasized that LtCol JAM wasn’t the SJA in the case, and was thus not acting on behalf of the convening authority.
NMCCA then stated,”Second, in Lewis there was no good faith basis to inquire into the military judge’s personal life. Here the facts are undisputed that LtCol MDM did marry a 17-year-old woman. The Government had verified this fact before commencing its voir dire into how that fact might have influenced LtCol MDM’s pretrial ruling on the definition of a minor. Col Richardson found this to be a good faith basis for questioning and we agree.”
That part of the opinion raises a question in my mind: how did the Law Center OIC and the TC get access to Judge Mori’s personnel record? There might be a satisfactory answer to that question. If so, NMCCA doesn’t share it with us. The image of prosecutors somehow gaining access to Judge Mori’s personnel record and trolling through it for evidence with which to seek his disqualification is troubling to me. In the event that CAAF grants review of this caes, perhaps that point will be further developed.
NMCCA also noted that, unlike Lewis, this was a members case before and after the military jude’s recusal. NMCCA also indicated that unlike in Lewis, there was no suggestion in this case that the military judge had done anything wrong. Rather, NMCCA characterized the situation as raising a question of whether the military judge’s ruling was influenced by his “life experience.” NMCCA explained, “Because LtCol MDM had married a 17-year-old woman, it is a reasonable inference that his view on the legal definition of a ‘minor’ might be colored by his personal history.” Members of the Navy-Marine Corps Trial Judiciary, stand by for a lot more intrusive voir dire citing that language as justification.