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.