Today CAAF decided United States v. Salyer, No. 13-0186/MC, (opinion) (CAAFlog case page) finding that the Government’s conduct in accessing the trial military judge’s official personnel record to acquire material used to obtain the judge’s recusal from the case raised some evidence of unlawful command influence, and that the Government failed to prove the harmlessness of this influence. CAAF reversed the NMCCA, set aside the findings, and dismissed the case with prejudice.

Chief Judge Baker wrote for the court, joined by Judges Erdmann and Stucky. Judge Ryan dissented, joined by Senior Judge Cox.

If you haven’t been waiting anxiously for this opinion, here’s something to whet your appetite:

After the members returned, the military judge provided preliminary instructions, including the definition of child pornography, with minor defined as a “real person under the age of 16.” Trial counsel, Capt Maya, proceeded with her opening statement, making the following statement to the members regarding the actions of the investigator in the case:

But at this point all she had was that IP address. She didn’t know who was behind the IP address so she sent a subpoena off and she found out that this IP address was registered to a Danielle Salyer who lived at [address].

Emphasis added. This was an obvious reference to PE 5, which had been excluded. With apparent frustration, the military judge addressed trial counsel outside the presence of the members:

MJ: Stop, stop, stop. I specifically excluded that piece of evidence. How are you going to get it in?

TC: Effect on listener, sir. It is the reason — it is part of the investigation that is —

MJ: Okay, I am not going to allow that in.

TC: But, it wouldn’t be for the truth of —

MJ: It is not coming in. That is a piece of evidence that ties the accused.

TC: And the government would be amenable —

MJ: No —

TC: — to a limiting instruction if we couldn’t get some sort of —

MJ: Well, it’s either going to be a mistrial if you don’t get it in somewhere else.

TC: Sir, the —

MJ: Just listen. That is my ruling. We aren’t going to address that.

TC: Yes, sir.

. . . .

MJ: I’ve considered your argument on the effect on the listener and I am not allowing it.

After this ruling, the Court recessed. Capt Schweig, the military justice officer, later testified that he and unnamed others met and discussed the military judge’s ruling on the definition of a minor. According to Capt Schweig, Capt Maya told him of rumors that “Lieutenant Colonel Mori may have had a young wife.” This prompted Capt Schweig to access LtCol Mori’s official personnel record. According to Capt Schweig, this record indicated that LtCol Mori had been married for ten years and that his wife “was most likely 17 years old or maybe a little bit more at the time they were married.” Capt Schweig further testified that, “The sole basis was an attempt to determine if there was any possible source of bias inherent in the judge’s ruling.” According to this same testimony, having retrieved the information from LtCol Mori’s personnel record, Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC) of the base Legal Services Center. They discussed the military judge’s decision to use age sixteen vice age eighteen to define a minor for purposes of the charged child pornography offenses.

Slip op. at 9-11 (emphasis and notation in original). And:

[W]here 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.

Slip op. at 24.

Salyer was the last undecided case of the term, so that’s all folks for ST2012. End o’ Term Stats to follow.

36 Responses to “CAAF Decides Salyer”

  1. stewie says:

    I’ll play devil’s advocate here.  First, let me say that I think the government’s actions were reprehensible.  I think the possibility of professional/military sanctions of some sort should be considered.
     
    Having said that, I don’t often agree with Judge Ryan, but she has a point.  You aren’t entitled to a specific judge as an accused, and the replacement judge kept all of the defense-friendly rulings in place, including the under 16 for ruling, which while logically right unfortunately isn’t the law.
     
    So why does the accused deserve a ruling that says dismissal with prejudice if the government’s actions led to absolutely no change in rulings?  I think the court is right that the appearance of UCI is clearly raised by what the government did here, of that there is no doubt.  But I find Judge Ryan’s argument that there was/is a cure short of dismissal with prejudice.
     
    Not that I’m crying any tears for the government, as I said, what they did is worthy of some sort of sanction for the parties involved as it was grossly bad judgment at best.

  2. Lieber says:

    I think stewie is right if you take this case in a vacuum.  But it seems to me that CAAF is pretty clearly sending a message that’s larger than the case itself.

  3. charlie gittins says:

    I think CAAF is well aware that there will be no sanction of anyone involved in the reprehensible conduct engaged in by the Government.  Knowing that, dismissal with prejudice send a message to the Judge Advocate General to get his house in order.

  4. stewie says:

    we don’t know that, at least as far as state bars go, they may not look too kindly on what some of the government folks did here.

  5. Zachary D Spilman says:

    Well, here’s what would happen next if this involved a Department of Justice attorney:

    1-4.120 Reporting Allegations in the Course of Judicial Proceedings

    A. Judicial Statements Concerning Misconduct. Department attorneys shall report to their supervisors any statement by a judge or magistrate indicating a belief that misconduct by a Department employee has occurred, or taking under submission a claim of misconduct. Supervisors shall report to DOJ OPR immediately any evidence or non-frivolous allegation of serious misconduct.

    B. Judicial Findings of Misconduct and Requests for Review. Whenever a judge or magistrate makes a finding of misconduct by a Department employee or requests an inquiry by the Department into possible misconduct, the finding or request shall be reported immediately to the employee’s supervisor and to DOJ OPR, regardless whether the matter is regarded as serious or non-serious.

  6. Michael Lowrey says:

    I’d argue that a major factor in CAAF’s decision was the line the government took on appeal and especially during oral argument. The Big G would not concede that going through the judge’s personnel file gave the appearance of UCI. This prompted one of the judges (Chief Judge Baker, I think), to respond by asking whether the court could consider the government’s position on appeal in making its ruling. (The government said yes, CAAF could.) Had the government admitted that what happened was way over the line, perhaps the court might have done as Stewie suggests.

  7. Christopher Mathews says:

    @ stewie:  One of the problems for the Government was that Judge Richardson, the replacement judge, did not exactly keep “all of the defense-friendly rulings in place.”  
     
    Judge Mori ruled that a statement offered by the prosecution was part of a confidential communication between the accused and his then-wife, and that the Government would have to prove a waiver of the privilege.  Judge Richardson opined that that would be an uphill battle … but then ruled that the communication wasn’t confidential after all.  No confidential communication = no privilege, and no need to fight the uphill battle.  The bottom line was that the change in judges made the prosecution’s work easier.
     
    You can argue, as Judge Ryan does in dissent, that even if Judge Richardson was wrong the evidence was cumulative and the error was therefore harmless; but the Government, which fought long and hard to get the statement in and then referenced it repeatedly in closing argument, apparently felt otherwise.  There were a number of other issues left open by Judge Mori in which Judge Richardson ultimately ruled for the Government: the potential mistrial over PE 5 and the maximum sentence, for example.  The Government was not able to show that those issues did not turn out more favorably for the prosecution because of the change in judges.  It’s possible that there was no way for them to do so.
     
    The analysis endorsed by fn. 3 and 4 of the dissent would appear to give the Government carte blanche to go after an unpopular or uncooperative military judge, so long as it does so only in strong cases or issues for the prosecution.  Given the lack of tenure for military judges, the Government’s role as custodian of the judge’s records, and the lack of any apparent safeguards protecting the judge other that the appellate courts themselves, the majority concluded dismissal was necessary — not just to protect this particular appellant, but to protect the military justice system itself.
     
    (Disclosure: I was one of the authors of the NIMJ amicus brief which called for dismissal).

  8. Christopher Mathews says:

    @ Michael Lowrey: I tend to agree that the Government position on appeal, which boiled down to a paraphrase of Col. Nathan Jessup shouting “You’re damn right I did!” was one of a number of unforced errors.  
     
    Basically, the Government was saying that trial counsel can ransack a judge’s files anytime they feel so inclined.  CAAF clearly took issue with that.

  9. paleo says:

    This case reaches beyond the parties specifically. It involves UCI and attorney misconduct. Whether technically correct or not, a servicemember’s chain of command and the OSJA act under color of law 24/7. What’s worse is that on most installations the law enforcement personnel are beholden to the OSJA and commanders. They violate the mandate of impartiality by virtue of this close relationship. Such is the power of commanders that it is more appropriate to think of them “as the law” rather than merely acting under color of law. This is why UCI is such a huge issue. This dynamic is bad enough.
    However, once you consider the moronic language of Hyde, stipulating that a court must find “vexatious” conduct – by the way, how would one readily come to an objective measurement of vexatious – in order to award fees etc in cases of prosecutorial misconduct, and that Neal Katyal defended prosecutorial immunity by stating no one has a due process right to not be framed, and that SCOTUS has reprimanded US Attorneys and the DOJ did nothing about it, and that oversight within the military system seems to be non-existent, then you can lift the veil and see this case for all that it represents. 

  10. Neutron73 says:

    I think the ONLY correct resolution for this is to round up all the people involved on the government side (including those unnamed others Capt Schweig apparently can’t remember) and subject them to the stiffest punishment possible.  Mannle, Maya, Schweig, any of the admin folks who gave them access to the files, the “unnamed others”…all of them.  Submit to their respective bars this result and their conduct during the case and have their licenses suspended, etc.  Just a dismissal with prejudice is not enough.  
    This was a calculated, long-term plan to do whatever it took to get LtCol Mori off the bench, and it goes to well before Salyer, because it says it in the opinion: they were not happy with his decisions for a while.  Therefore, this was far more malicious and planned than it would seem on first read.  
    But as Mr. Gittins says above, they will like all escape any sort of punishment. Any punishment at all.

  11. rob klant says:

    Reading the Marine Corps system of records notice for personnel records, I can’t figure out why a copy of the military judge’s marriage certificate should have been available, let alone what authority was asserted by the prosecution to obtain it.
    Anything in the record or pleadings address this?

  12. Matt James says:

    @rob klant: Good question. And a random thought:  if the Government can access it, does this mean they are now discoverable? 

  13. Zachary D Spilman says:

    I’ll make a very educated guess (based on my knowledge of the systems, not any information about the case other than what’s in the appellate briefs and opinions) that the prosecutors used the Marine Corps Total Force System, also known as “3270.”

    This computer system is routinely accessed by the trial shop to pull service record data. MCTFS contains basically all of a service member’s personnel data, including data on dependents like the “gain” date for the dependent (which for a spouse will normally be the marriage date) and the dependent’s date of birth.

    Of course, misuse of 3270 may well constitute a violation of the Computer Fraud and Abuse Act.

  14. Cap'n Crunch says:

    Colonel Matthews:  I am curious… what would you have done had this case, on these facts, come before you at the AFCCA when you were there?  Also… what considerations go through an appellate military judge’s head when considering a case like this, and, how are those considerations different from the judges at CAAF?  Obviously, NMCCA affirmed.  Thoughts?

  15. rob klant says:

    If trial counsel actually are directly and routinely accessing the MCTFS for courts-martial, I’d be concerned about the possibility of systemic abuse. 
    A quick look suggests the MCTFS is covered by nothing more than the DoD’s blanket “routine use” notice, apart from the exemptions under the Privacy Act.
    Perhaps this case will prompt an audit of accounts assigned to the USMC trial shops.  If I believed I were a victim of a possible violation, I certainly would ask for one.

  16. Ed says:

    The DOD will probably do nothing but some of the state bars may not be so sanguine. Is there is list of the state bars of all of those involved.  Whoever has legitimate access to this information should but it out on this blog and let the viewers act as they see fit.

  17. Christopher Mathews says:

    @ Cap’n Crunch:  I expect that if I’d been tasked with writing a service court opinion in this case, it would have been similar in both its analysis and result to the majority opinion at CAAF.
     
    I can’t really speak to why the CCA in this case rendered the decision it did, nor the differences (if any) between how service court judges look at cases and how CAAF judges look at them.  A few years back, though, I was on a panel of judges at a course for new federal appellate counsel and was asked what considerations went into writing an opinion.  I answered that while each case obviously stood on its own and deserved a decision on its merits, I was very much aware that the opinion had a broader audience than the immediate parties: that other counsel would read it, perhaps years later, and try to determine how the law applied in their cases.  
     
    I think that was especially true here.  No matter how it turned out, Salyer was always going to be a case that set boundaries for acceptable conduct in the Government’s treatment of military judges.  
     
     

  18. Michael Lowrey says:

    @Ed: Military lawyers live such sheltered lives. A very few minutes spent on Google and then Avvo.com produces the following:
    The military justice officer in this case was Capt. Jesse Schweig
    The OIC of the base Legal Services Center was Lt. Col. John “Jay” Mannle
    No immediate luck with Capt. Maya, the TC in case (I’m not in the mood to go through all the Mayas in Avvo) but if you had her first name, you could trace her in about a minute.

  19. Cap'n Crunch says:

    So, who wants to draw straws for who is going to file the Bar Complaints with the respective states involved?  Schweig is licensed in Missouri, Mannle in California?

  20. Tami says:

    Good for the CAAF majority for sending a strong message that prosecutorial misconduct will not be tolerated, and recognizing the circumstances of accessing Lt.Col. Mori’s personnel records (violation of Privacy Act) showed the call to the chief judge was more than just “not wise,” it was flat out wrong, and the Government gained an advantage from its lawyers misconduct.  If they really thought Mrs. Mori’s age at the time of marriage was influencing the ruling, then the “rumor” was sufficient, in and of itself, to justify the voir dire.  If Lt.Col. Mori wasn’t honest in his answer, THEN they would have an “official need to know” that justifies the snooping.
     
    There are civil and criminal penalties for violating the Privacy Act.  I think all personnel involved in pulling up the Moris’ personal information should be disciplined, and Mrs. Mori should sue them for their Privacy Act violations–her husband’s personal information is also her own, and it was the issue with her age that started all this.
     
    I am disappointed that Judge Ryan based her dissent, in part, on Salyer’s failure to prove the UCI prejudiced him.  Salyer had no burden to prove prejudice–only the Government has a burden, and that burden is to prove NO prejudice beyond a reasonable doubt.

  21. RY says:

    I agree Tami.  Judge Ryan makes some good points but appears to place the burden on appellant rather than on the government.  It is a windfall for appellant but necessary to ensure such ridiculous conduct is held in check.

  22. rob klant says:

    Tami, I agree that a reasonable good faith belief alone would have been sufficient to support voir dire, calling into question trial counsel’s “need to know”.
    But, even assuming for the sake of argument that there was a “need to know”, that need would still have to be validated against the particular lawful purposes of the specific system of records which was accessed.   
    I don’t know how sufficient internal controls on release decisions can be maintained if, as suggested above by Zachary D Spilman, the document was retrieved from the MCTFS and USMC trial shops actually have their own accounts to access it directly, on a regular basis.
    Without the facts, though, I’d be guessing as to what, if any, violations of the Privacy Act may have occurred.  For all I know, it was a violation even to have stored a copy of the certificate in the system or to have retained it past whatever date was provided for its destruction/disposition.
    It does cause to me worry, though, about the vulnerabilities these electronic systems are creating, not only for potential abuses by the government but for national security.  Here and in Manning et al., the root cause seems to the human factor.

  23. paleo says:

    Since Monday is fast approaching, shouldn’t we see the initiation of investigations or disciplinary actions by respective TJAG and command authorities, for the prosecutors involved? If that doesn’t take place, what does it say about the fidelity of the military justice system, and will defense teams use such a failure to act as a tool in future cases?

  24. rob klant says:

    Personally, I’d first like to see an investigation conducted outside the circle of military justice, perhaps by subject matter experts such as the DoN CIO or Privacy Officer.  
    Then, after all the facts have been more carefully developed and analyzed, other authorities would have ample opportunity to determine what, if any, administrative or disciplinary action might be appropriate.
    I could imagine a different disposition if the case “merely” involved UCI or the violation of professional ethical obligations, than if it actually involved violations of other federal criminal or civil statutes.

  25. Sea Lawyer says:

    The Marine Rules Counsel should light these Government actors up.  He certainly cannot cite the existence of a dissenting opinion as justification for doing nothing.   Even that portion of the opinion acknowledges potential violations of the rules of professional conduct.  See page 11 n.3 (Ryan J., dissenting) (“I agree with the majority that the MJO’s action in accessing LtCol Mori’s personnel record was highly improper and may even rise to the level of an ethical violation.”).  Further, I find it refreshing that the majority opinion did not resort to the use of initials–as the NMCCA did in its opinion–when they spoke of the Government actors in issue.  To quote Justice Brandeis, “sunlight is said to be the best of disinfectants.”

  26. Lieber says:

    Before you call for trial counsel et al to no longer have access to personnel records, defense counsel should recall that discovery request they sent last week requesting the complete personnel files for 35 witnesses in a given case.  How do you think those requests get fulfilled?
    Otherwise, agree with most of the points raised.

  27. rob.klant says:

    How would I have discovery requests of personnel requests fulfilled?  By having trial counsel go to some custodian of the records, outside the trial shop chain of command, and asking for them.  
    But, if modern information systems have created a new paradigm for the practice of military justice, what if defense shops were given direct access themselves, under the same conditions as trial shops? 
    Do they have any less a “need to know” the information in the course of the performance of their offical duties?
    It’s interesting to me that an individual user account for the MCTFS system, for example, can apparently be obtained simply by submitting a DD 2875, a System Authorization Access Request (SAAR), with the “need to know” verified not even by a commanding officer, but simply by the requester’s “supervisor.”
    I’d be curious to hear of any defense counsel’s success in obtaining such an account.  I’d be surprised to learn, however, if defense shops don’t already have access due to the necessity of managing their own personnel.

  28. Tami says:

    In a nutshell, in order to access someone’s personal identifying information (PII) without that person’s consent, you must have an “official” need to do it.  In this case, there was no “official” need to access Lt.Col. Mori’s personnel file to verify his wife’s age at the time of marriage.  First, TC could have, and should have, verified through voir dire.  Second, the claim about Mrs. Mori’s age influencing Lt.Col. Mori’s ruling on age for child porn is “subterfuge,” since his ruling was based on the age of a “child” under the UCMJ, as the gov’t charged.  Accessing PII without “official” need = Privacy Act violation.  Disclosing PII to DOD employees without an “official” need to disclose, or for the other employees to know, also = Privacy Act violation.
     
    In this case, there was improper motive in accessing and disclosing the Moris’ PII, and Mrs. Mori’s age at the time of marriage had nothing to do with her husband’s ruling on age for the definition of “child” porn.

  29. rob klant says:

    On this record, I’m not sure we can assert anything with certainty as to a Privacy Act violation.
    First, apart from the reference to a “personnel” file, are we confident the information was even obtained from a system of records subject to the Privacy Act?
    Second, if I recall correctly, there are about a dozen exemptions in the Privacy Act which would allow access without the person’s consent. 
    Admitttedly, I would find it difficult to believe that most would apply in these circumstances, but do we even know which exemption trial counsel relied on to obtain the information?
    Third, both trial and defense have the right to inquire into the fitness/suitablilty of the trial judge.  I don’t know of anything which requires them to accept the judge’s answers to voir dire on their face. 
    Off-hand, I’d think instead that each counsel could reasonably seek and present information to validate or to rebut the judge’s representations.   Doing so would clearly seem to be within the course of the peformance of the official duties of counsel.
    So, based on what we know of the facts of this case, I could imagine a scenario where some act which is UCI or an professinal ethical violation would not necessarily be Privacy Act violation.

  30. Some Marine Guy says:

    No worries, the Marine Corps has already taken remedial action against Capt Maya by selecting her as one of the “best and fully qualified eligible officers” for the Commandant’s Career Level Education Board. For those non-Marine types, that’s our screening board that selects Captains for the LL.M. programs and residential Expeditionary Warfare School. In all seriousness though, if she gets sent to residential EWS I would consider her sufficiently sanctioned.
    Maybe it’s because I’m a young judge advocate myself, but I do feel some sympathy for Capt Schweig and Capt Maya. I don’t know them personally, but I do know people who know them and they seem by all acounts to be pretty good people. I think their biggest problem was that both of them were relatively new first tour judge advocates when this happened, and were sorely lacking in some responsible adult supervision. My perception is that there is a “win at all costs” attitude in a lot of trial shops around the Marine Corps. I think this has only gotten worse with the re-org and the heightened scrutiny from higher. With all the focus now on vindicating “victims” and getting rid of “offenders,” doing justice is being equated with getting convictions. The message to young TCs seems to be that you’re right if you’re doing what you think you need to in order to get a conviction. There doesn’t seem to be much of a focus on using the large amount of power you wield as a prosecutor to ensure a fair and just system. Maybe we need a few figurative public executions of some judge advocates to restore sanity to the system, but as others here have observed it certainly needs to include any superiors to the TCs here who were aware of their actions.

  31. just a judge advocate says:

    @Some Marine Guy – For the record, Capt Schweig was not a first-tour judge advocate.  He was on his second tour after his first duty station, Camp Lejeune.  At the time of the original trial, he had been practicing for 4 years.  Not a long time, but long enough to know better.

  32. Michael Lowrey says:

    And the TC in this case was Capt. Harlye Maya, who has held a California law license since 2008.

  33. paleo says:

    Looking at the comments of ‘some marine guy’, that’s exactly what UCI is – pressure of potential action or even the unwanted glance. Such comments should be setting off alarm bells with TJAGs and officials sitting on the Armed Services and Judiciary Committees. Easier said than done, but JAs need to resist that pressure. Careers, reputations, families and lives depend on that. 
    Few things come to mind: 1) USMC (and all branch) leaders need to step back and take a long look in the mirror and do an azimuth check. If their actions are having that effect, they’re wrong. Period. 2) Those prosecutors deserve fairness and impartiality with regard to judging ethics, PII, and other violations. I can’t find a saving grace for them, but I observe from a distance. The worst thing would be a typical military knee-jerk reaction and banish them all to hell. If they’re raked over the coals and manage to retain the ability to practice law, the grudge they will likely bear will be of no use to any party they represent, and certainly not to themselves or their families. Make them accountable, don’t turn them into statistics. 3) All this talk of vindicating victims and so forth…we may need to start asking just who the victims are. A “win at all costs” and “burn the deadwood” mentality vindicates no one, destroys rather than supports good order and discipline, and within military justice is a tactic without a strategy, which Sun Tzu described as the noise before defeat. 4) Careful looking for ‘figurative’ executions – it could be your career that meets the blade. 5) Several people have commented on the need for ‘adult supervision’ of the TCs involved. Isn’t there specific language in the professional responsibility codes about supervisory roles and responsibilities? Not only that, there is general military authority and responsibility by virtue of rank, and position. Failure to properly supervise is dereliction of duty. Though experienced, these TCs have little in the bank when compared to an O-5 or O-6 with 15-20 years TIS. 

  34. Tami says:

    The Government’s “win at all costs” attitude results in the Government being the biggest loser.  Every time I have seen that type of attitude, the Government loses, whether it be an acquittal, conviction of a minor offense, or conviction of a serious offense but with little to no jail time and no punitive discharge.

  35. Neutron73 says:

    It was my impression that antics like this got people fired and run up the flagpole.  And that would be the least of their worries… 
    But I guess if you are part of the SJA “network”, this sort of thing will present no trouble at all.  No wonder the Marine Corps JA community is under scrutiny, what with the mess they have with the CMC and the legal community’s involvement in the alleged “coverup” and unbelieveable practices of the 3/2 Sniper cases and so on.  http://www.marinecorpstimes.com/article/20130804/NEWS06/308040005/Commandant-s-actions-scout-sniper-cases-eyed-by-sex-assault-defense-attorneys

  36. Anon123 says:

    There’s too much hyperbole and over thinking going on here. First, state bars did nothing to Glazier and Feldmann and they stole evidence in a death penalty case.  They not going to do anything here either.  And second, you know what this case says if it is limited to one sentence ? “READ LEWIS YOU IDIOTS.”