I sent an email to CAAF after midnight last night asking for a copy of the supp in United States v. Salyer.  The wonderful folks at the Clerk’s office have already sent me a copy, which we’ve posted here.

Here’s the issue presented:

UNDER UNITED STATES V. LEWIS, A CASE IS DISMISSED WITH PREJUDICE WHEN UNLAWFUL COMMAND INFLUENCE RESULTS IN THE RECUSAL OF A MILITARY JUDGE. HERE, THE MILITARY JUDGE RECUSED HIMSELF BECAUSE HE FOUND THAT THE GOVERNMENT’S ACTIONS MADE IT IMPOSSIBLE FOR HIM TO REMAIN ON THE CASE. THE GOVERNMENT COMPLAINED TO HIS SUPERVISOR ABOUT A RULING, ACCESSED HIS SERVICE RECORD WITHOUT PERMISSION AND, WITH THIS INFORMATION, MOVED FOR HIS RECUSAL. SHOULD THIS CASE BE DISMISSED WITH PREJUDICE?

21 Responses to “Salyer supp”

  1. Don Rehkopf says:

    While UCI is certainly a viable issue here, I think it goes substantially beyond that.
     
    First, (and this is not an ad hominem attack on the TC or SJA), the conduct is like a cancer that is infecting (and chilling) the core concept of an independent judiciary.  It is more-or-less proof that such is an illusion in the military judiciaries.
     
    Second, in the zeal to prosecute, why isn’t the illegal conduct in accessing LtCol Mori’s private personnel records not criminalunder the UCMJ?  There certainly appears to be Art. 92, Art. 133, and Art. 134, violations, at least imho.

    http://www.justice.gov/opcl/1974crimpen.htm

    I would hope that the other Appellate Defense shops would do amici briefs or at least one joint amicus brief.  Just a thought.

  2. Bill C says:

    As Dwight alluded to early in this case, I can’t even imagine an AUSA doing this to a Federal District Court judge, and surviving with his job.  Maybe not even with his law license.  The fact that NMCCA not only countenanced this behavior, but gave it credence, is almost as disturbing as the underlying conduct.  I don’ t know that CAAF will reverse, but I do know that an independent investigation should be done as to how this happened.

  3. SFC V says:

    I don’t agree with accessing the judges personnel file but I doubt this information originally came from said file.  The JAG world is small and I’m sure someone tipped off the trial counsel. 
    I have an issue with how this went down but the judge did apparently have a bias.  I think there was definitely a better way to handle this.  If you have the info from another source why not just ask the judge about it instead of accessing his file in this manner?
     
     

  4. Zachary Spilman says:

    I think there was definitely a better way to handle this.

    In a case where the difference in the age of majority (16 years vs. 18 years ) didn’t matter, it’s not about a better way. It’s about that way that introduces the most error; [edit: what seems to be] the priority for Marine Corps trial counsel these days.

    Edit: Harsh and a little unfair, hence the edit. My apologies to justice-minded Marine Corps trial counsel everywhere. But the supp illustrates that this was a coordinated attack on a military judge, including contact with his military superior, based on an unfavorable ruling that was neither outrageous nor meaningful in this case. I’m not sure about going for someone’s job or law license (as Bill C comments above), but a clear statement of policy from the newly reorganized Government that this sort of thing isn’t permitted would be nice.

  5. John S says:

    SFC V is absolutely right.  The JAG Corps is very small and someone let the TC know the MJ’s dirty laundry.  Not to excuse what was done by the government in this case, the military judge should have recused himself and this issue never should have come up.  In what world is it ok for a MJ who got married to a 17 year old not to disclose that fact to both sides and recuse himself in that specific case?  Who in this forum really believes a person who married a 17 year old when they were 35+ can be objective when ruling what age constitutes the definition of child pornography?  Not me…

  6. Michael L says:

    In a world where it is perfectly legal under many state laws and the UCMJ to marry a 17 year old.  Next question?
    Of the two parties (TC and MJ) it seems only one violated the law.  Shouldn’t we be more concerned with people who violate the law rather than those that abide by it?

  7. Charlie Gittins says:

    The fact that a MJ lawfuly married a 17 year old has nothing to do with this case.  The TC didn’t like a discretionary ruling and, with the assistance of his military superiors unlawfully accessed a personnel record to use it to engineer removal of the military judge.  I find that conduct unlawful, in the sense that it is an effort to uynlawfully influence a court-martial.  I find it unlawful in that a mechanism used to unlawefully influence a court-martial included unlawfully accessing a personnel record and disclosing PII in violation of federal law and regulation.  I find that the Law Center DIrector’s call to the Circuit Military Judge actually was or clearly appears to be an effort to “tattle” on the MJ and put pressure on the MJ through his superior in the Trial Judiciary. 
    That there was no lawyer discipline imposed slays me.  The JAG Corps manufactured a case against Partington alone from arguments he made in a brief signed by both he and military counsel.  Yet, confronted with evidence of serial acts of unlawful and unethical behavior, not a finger is lifted by Rules Counsel or the SJA to CMC.  Instead, they sit with their thumbs planted firmly in their collective arse.  SWITCH! 

  8. Mike "No Man" Navarre says:

    Happy holidays to all, particularly CG, who I have to ask, so how do you really feel? 

    I find the most amzing aspect of this post is that CAAF didn;t even ask for a FOIA request to share a public pleading with a blogger yet getting pleadings form the CCAs is like asking for the launch codes to an ICBM.

  9. k fischer says:

    How many counsel really voire dire the military judge?   Does anyone ask the military judge the litany of questions listed in the MJ’s Benchbook that the MJ asks the panel?  How many would like to know if the MJ or someone close to the MJ has been a victim of a crime that has been alleged in the court martial?  If the Judge can’t be a factfinder because of bias, then the Judge cannot preside over a panel trial, either.
     
    I don’t have as much heartburn over the voire dire subject because I agree that the questions were appropriate fodder for voire dire.  However, the Privacy Act violation and the phone call to the Judge’s boss were completely inappropriate.  Why on earth didn’t the Government just ask him on voire dire how old his wife was when she married him in an 802 and ask him to sua sponte recuse himself on the record?  And, if he did not comply, then bring a motion?  
     
    And, I appreciate the transparency of the Government to admit they accessed his PII info, but why did they admit the record when he stated his wife’s age upon marriage?  Seems cumulative, especially when the facts were in the record based on his admission.  Instead, they needlessly broadcast the fact that they went through his records.

  10. Michael L says:

    SFC – if you are correct and TC knew of this fact why wait until after the MJ rules on a motion?  Why not VD the MJ the appropriate part of the trial?  Did TC know and try to sand bag?

  11. Dew_Process says:

    Let’s get back to basics before we address the esoteric.  Was the “conduct” of the TC, SJA or both, illegal under the UCMJ?   If yes, the ethical issues are resolved ipso facto.  If their conduct was not illegal per se under the UCMJ, then it would seem that the focus should be on whether or not that conduct was either a direct violation of the applicable Ethics Rules (and I’m talking about both military and State licensure rules) or the “appearance” of such violations.  I personally have a hard time swallowing the fact that the government violated both the Privacy Act and its implementing regulations in order to secure a tactical advantage in on-going litigation, can (and until now was) condoned by a so-called “judiciary.”
     
    As Bill C appropriately imho observed, in the “real world” of federal civilian practice, any AUSA who came close to such conduct, wouldn’t really be worrying about his/her job — they’d be hoping that they could come up with enough mitigation to save their law licenses.  Why?  Because federal judges value both their independence and the “separation of powers” concept.  Dan Mori [DISCLAIMER:  I'm a personal friend of his, but have not discussed this case or issue with him] did the right thing in recusing himself after the goverment hurled its cesspool innuendoes at him, but you can’t throw sh*t unless you’re first standing in it.
     
    Appellate Government has a chance to restore some semblance of “legality” to all of this by urging CAAF to grant on “this important issue,” or have the Navy TJAG “certify” the issue.  Then whatever spin they want to put on it, is that of an advocate, and they, as the sovereign, can claim that they are seeking “justice,” not a misguided conviction.
     
    While not argued by appellant, I would hope that a “friendly” amicus would revist the due process arguments raised in Weiss v. U.S.,510 U.S. 163, 176 et seq. (1994).  Since Weiss was decided almost 20 years ago, Canada, the U.K. (and Gene Fidell will correct me if I’m wrong) and I believe Australia have all decided that basicdue process principles mandate a more independent military judiciary than what the 1950 UCMJ ordained.  If the spirit of Article 36 is to have any meaning, for those of you who have ever practiced in a federal district court, imagine what would happen if the U.S. Attorney [SJA equivalent] called up the “supervising” judge of the district to complain about a ruling by an “ordinary” federal judge that adversely affected an AUSA’s prosecution.  Just a thought!

  12. Michael L says:

    Dew:  illegally accessing a personnel record is a violation of the uCMJ, an orders violation of DoD and service regulations on accessing PII.  Also, if you read the supp you’d know he defense requested TJAG cert in this case and she decline to cert.  Given the procedural posture I doubt the gov’t would urge CAAF to grant but I don’t know if the Gov’t has responded yet.
     

  13. Charlie Gittins says:

    Dew:  Violation of a procedural rule — I forget the article now and don’t have my manual in front of me — would be the appropriate vehicle (at least) for a charge of UCI brought against a person who exercised UCI, I believe.  Since there have been so few prosecutions for actual UCI (maybe one?), why not convene an Article 32 and take evidence?  I have seen Article 32 hearings convened on much thinner evidence — USMC JA Captain Randy Stone’s Haditha related case comes immediately to mind.

  14. Zachary Spilman says:

    Article 98, but a good review of the development of Article 37 (the actual prohibition on command influence) is always refreshing:

    It is our opinion that there is nothing in Article 37 of the Uniform Code of Military Justice, which is the Congressional mandate against unlawfully influencing judicial action, that is at all inconsistent with proper military administration and operation. We have reviewed, with professional assistance, the decisions of the Court of Military Appeals dealing with the problem of so-called “command influence”. It is not proper for us to say whether we agree or disagree with factual determinations or inferences drawn in those cases. We can say that the principles expressed in those cases are entirely consistent with the maintenance of good order and discipline. The Committee, therefore, supports the slight extension to Article 37 which is contained in the DOD omnibus bill (HR 3387). The Committee believes that no person should be allowed to attempt to coerce or improperly influence judicial action in the armed forces and recommends an additional clarifying amendment to Article 37.

    Report to Honorable Wilber M. Brucker, Secretary of the Army, Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army, at 12 (1960).

  15. SFC V says:

    One doesn’t have to break the law to have a bias.  Just because he lawfully married a 17 y/o doesn’t mean it doesn’t effect his decision making.
    Age of consent and the age at which someone can legally appear in pornography are not the same in many jurisdictions.  They don’t have to be the same either. 
    If it didn’t matter why did the judge go out of his way to define the age at 16?  While I agree the definition made no difference in this case there will likely be others before this particular judge where it may matter.
    I’m not condoning the conduct in this case but the underlying ruling by the judge troubles me.  While the conduct of the government was egregious I do not believe the appropriate remedy is to set aside the findings and dismiss the charges.  The appropriate remedy is to take action against those who apparently violated the law.  Taking action against the individuals involved will have a far more deterrent effect than dismissing these charges.  
    This rests largely at the feet of the SJA.  No TC in their right mind would take on a military judge in this manner without full support and encouragement from the SJA. 
     
     
     
     
     
     
     
     
     

  16. John S says:

    Absolutely right, SFC V.  Michael L.:  You did a great job not answering the question.  The government’s actions were obviously wrong, but that does not mean the MJ could not have handled this much better.  A MJ is supposed to remain as neutral as possible but obviously comes into every case with their experiences and particular bias.  Every MJ I have practiced in front of addresses potential bias in an upfront and honest way.  Do not think my judgment is clouded because I disagree with the ruling on the case – I would have made the same ruling based primarily on the age of consent under UCMJ.  BUT I would have disclosed any fact that might question my ability to remain neutral and asked both sides whether they wished to challenge me.  The MJ’s failure to disclose his particular situation before ruling on that motion is unbelievable.  If this case is an indicator of their performance, their JAG Corps career will not go far – certainly not an SJA.  So Michael L.  do you think the MJ should have disclosed this fact before ruling on the motion? 

  17. Zachary Spilman says:

    BUT I would have disclosed any fact that might question my ability to remain neutral and asked both sides whether they wished to challenge me.  The MJ’s failure to disclose his particular situation before ruling on that motion is unbelievable.

    Is this right? Isn’t there generally a presumption that judges set-aside their personal feelings when performing judicial functions? They are, after all, still human beings.

  18. Michael L says:

    John:  what question?  Did you read the supp?  This whole thing is the fault if the govt when it amended the charges and changed the nature of the crime.  So, there was nothing for the MJ to say at that point in the trial when he said, “I know of no reason for a challenge…”  After the govt changed the specs he had no contalk disclose.  he married a woman lawfully.  MJ is presumed to know and follow the law which includes challenges.  Even on this record I find no basis for a valid challenge unless you would challenge him for getting legally married.  A marriage that was recognized as legal by the Marine Corps.  So to answer your last question, no.  There was nothing to disclose that would lead to a valid challenge.

  19. Cap'n Crunch says:

    Damn good thing I am not on CAAF.  Were I, I would accept jurisdiction, reverse, slam NMCCA in the process, and issue an order in reversing referring the SJA and TC involved to the state bar associations for disciplinary action, while issuing a show cause, if they are licensed before CAAF, to show cause why they should not be disciplined in their practice before CAAF, for their actions in this case.

  20. Atticus says:

    Why do people keep analogizing this to an AUSA/District Judge scenario?  It’s like apples and oranges….I mean apples and refried beans.  There is absolutely no comparison. Its called plenary authority (ignore 59(a) because we can do whatever we want on appeal) vs. real application of abuse of discretion. 

  21. Phil Cave says:

    Oh.  I just naturally assumed got this off PACER as he frequently does.