CAAF decided United States v. Salyer, No. 13-0186/MC, 72 M.J. 415 (CAAFlog case page) (link to slip op.), on August 2, 2013, finding that the appearance of unlawful command influence was raised when the Government counsel accessed the personnel record of the trial judge – Lieutenant Colonel (LtCol) Mori – in order to obtain information that Government counsel used to challenge LtCol Mori as presiding judge for the trial, and when supervisory Government counsel engaged in an ex parte communication with LtCol Mori’s judicial superior and expressed displeasure about LtCol Mori’s rulings in the case, both actions leading to LtCol Mori’s recusal and replacement as the trial judge. CAAF also finds that the Government failed to cure this appearance of unlawful influence with proof that a disinterested person knowing all the facts would believe that Appellant received a fair trial.

Appellant – who was a Corporal in the Marines – was convicted contrary to his pleas in 2011, by a general court-martial composed of officer and enlisted members, of wrongful possession of child pornography in violation of Article 134, and sentenced to confinement for two years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad-conduct discharge. CAAF reverses the conviction and dismisses the case with prejudice (meaning that Appellant will be restored in rank, will receive back pay and promotion consideration, and may not be re-tried).

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

The Chief Judge’s opinion is a massive 35 pages, but it treads rather softly around some key facts. Put simply, Government counsel made a slew of tactically and strategically nonsensical decisions in the prosecution of this case, creating a desperate situation with LtCol Mori threatening a mistrial after opening statements. The charges – which alleged distribution of child pornography and possession of a laptop computer containing child pornography – were poorly drafted (see slip op. at 3 N.2) and then stripped of key language before trial (see slip op. at 4). The laptop computer at the heart of the case either didn’t exist or was badly mishandled by the Government. See slip op. at 4. Government counsel fixated on meaningless issues, particularly whether the definition of “child pornography” in this case required that the image depict someone under the age of 18 or under the age of 16 (when the images clearly depicted individuals under the age of 16, and some under the age of 10). See slip op. at 25. And the animosity of Government counsel towards LtCol Mori is palpable, even in the mere snippets of the record reprinted in the opinion; they obviously held a grudge from LtCol Mori’s ruling disqualifying them from a different case (a remedy usually reserved for significant instances of prosecutorial misconduct). See slip op. at 14.

But Chief Judge Baker extends Government counsel a seemingly-undeserved degree of professional courtesy, merely disagreeing with the CCA’s conclusion that there was a good faith basis to access LtCol Mori’s personnel record and then question him about his personal life. Slip op. at 20. That questioning led to LtCol Mori recusing himself from further participating in the case. The subject personal fact was that LtCol Mori’s wife was 17 years old when he married her ten years prior. Most prosecutors armed with evidence including obscene images of children under the age of 10 would look past the ruling of LtCol Mori that, under the unique circumstances of this case, “a minor” was someone under the age of 16 vice under the age of 18. But this Government counsel:

testified that he was “prompted . . . to pull up [LtCol] Mori’s [personnel file]” because “the government was looking for some reason why [LtCol] Mori” had defined “minor” as under the age of sixteen, and someone in the prosecutor’s office had mentioned that LtCol Mori had a “very young wife.” He further stated that there was “absolutely no intent to embarrass the military judge. . . . [t]he sole purpose [was] to attempt to figure out if there were any outside influences in his decision.”

Additionally, the OIC testified at length as to his reasons for calling the CMJ. Along with trial counsel and the MJO, the OIC was “perplexed by” LtCol Mori’s ruling as to the definition of “minor.” When the MJO showed him LtCol Mori’s personnel file, which indicated that his wife was seventeen years of age at the time they wed, the OIC believed “at that point there was a relevant issue for the government that suggested bias on the part of [LtCol Mori].”

Ryan, J., diss. op. at 4-5. Nobody at CAAF thinks this was an even remotely good idea, with the dissenters “agree[ing] 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.” Diss. op. at 11 N.3. Because of these actions, LtCol Mori was replaced by Colonel (Col) Richardson, who then heard testimony and argument about the Government’s conduct, ultimately ruling that corrective action well short of dismissal was warranted. Col Richardson was undeniably charitable to Government counsel in his ruling on the propriety of their actions that led to LtCol Mori’s removal from this case. But the degree of deference to be afforded to Col Richardson’s ruling is a strong undercurrent in this case, and his ruling is ultimately somewhat unclear. Chief Judge Baker explains:

Col Richardson found neither actual nor apparent unlawful influence regarding trial counsel’s actions. He concluded that “[t]he MJ’s statistically anomalous personal situation in this regard, vis-a-vis his sua sponte raising the age issue and then ruling quickly and curtly in the defense’s favor was a perfectly valid basis for the Government to voir dire and challenge the MJ” and, that “the Government was well within [its] rights based on these facts to inquire into the matter.”

Slip op. at 17. But he also notes:

Regarding LtCol Mori’s marriage, the replacement military judge stated on the record that, “I don’t know that marrying a 17-year-old woman could affect somebody’s career in any way, shape, or form. And I don’t believe that that is a proper consideration. It was a legal marriage.”

Slip op. at 29 N.13. Whatever Col Richardson’s final conclusion about the propriety of the Government’s inquiry, Chief Judge Baker concludes (somewhat anemically) that the inquiry was in fact not proper, listing it among the factors that raise the appearance of unlawful command influence:

Second, in response to what is described by the Government and the CCA as a rumor conveyed by trial counsel, the military justice officer obtained access to the military judge’s official personnel file to determine the age of the military judge’s wife at the time she married the military judge. This marriage occurred ten years prior to Appellant’s trial. Trial counsel made no logical nexus between the wife’s age at marriage and the ruling regarding the age of a minor. Further, there is a considerable difference between marrying a seventeen-year-old, an act sanctioned by law, and possession of child pornography.

Slip op. at 25. Sadly, neither Chief Judge Baker’s majority opinion nor Judge Ryan’s dissent address the overwhelming amount of precedent along the lines that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Such analysis would have been particularly useful in this case, where Government counsel predicated their actions on a tactically insignificant ruling, a factually irrelevant personal event from a decade prior, and an apparent personal grudge (itself the product of a different ruling).

But Chief Judge Baker does neatly summarize how the Government counsel used artillery to swat at a fly:

The appearance of unlawful influence is 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 trial judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding. Trial counsel stated that these actions were taken in response to the military judge’s ruling on the age of a minor for an Article 134, UCMJ, child pornography charge. However, this issue was not central to the Appellant’s case as there appears to have been ample evidence for the prosecution to proceed regarding the images at issue and the Government did not attempt to appeal the ruling on an interlocutory basis.

Slip op. at 29. And the Chief Judge highlights the obvious consequence:

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.

Slip op. at 30. One might only add that the prosecution did so gratuitously.

Chief Judge Baker is blunt in addressing why the majority dismisses the case with prejudice (effectively giving Appellant a free pass for his disgusting crime):

the unprofessional actions of the Government improperly succeeded in getting the military judge to recuse himself from Appellant’s court martial. Whether the Government’s primary motive was to remove a properly detailed military judge from the case through inappropriate means or not, it had that effect. Were we to authorize a rehearing, 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. . . . 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. Consequently, on the specific facts of this case, setting aside the finding and sentence to allow a retrial would leave Appellant where the appellant in Lewis found himself, from an objective standpoint, the Government has accomplished its desired end and suffered no detriment or sanction for its actions.

Slip op. at 33-34 (citations and marks omitted) (emphasis added). Presumably, the “detriment and sanction” will now “run downhill,” as the following exchange from the oral argument of this case comes to mind:

[Transcript begins at 24:54 of the oral argument audio]

J. STUCKY: Doesn’t common decency toward a fellow Marine officer who occupies the position of military judge say something to you about the Government engaging in this kind of thing?

GOV’T COUNSEL: It does Your Honor, and that’s why the Government is certainly not asking this court to bless what happened in this case and say that everything that happened is correct-

J. STUCKY: You seem to be saying that in your brief.

GOV’T COUNSEL: Your Honor, maybe the problem-

C.J. BAKER: And you’ve just stated that it was appropriate.

GOV’T COUNSEL: Based on the specific facts in this case, based on the Privacy Act for instance-

J. RYAN: But do you need to take that position? Do you need to defend what happened in this case in order to make your argument? And if you don’t then why would you?

GOV’T COUNSEL: Because I think the… Looking at the error in this case we need to provide context to it. So even if it is – Absolutely the Government is not going to take the position that everything that happened here is correct and appropriate, and frankly it is not. The Government takes that position in the brief. That everything that happened here is not correct and not appropriate, and we concede apparent UCI.

But in this case, whether this is an actual breach of the Privacy Act or [indecipherable, but maybe “some other statute”] is for a different forum, for a different – which deserves further discussion. We mean, there’s nothing on the record that says this is not allowed, but with that said the Government’s not asking for this court to bless this. The Government’s not asking for this court to say this is the way to do it, we want this to happen, or anything along those lines. The Government’s simply saying, what happened with – simply involving the personnel record – a different forum will investigate that as appropriate. But what we – and the reasons this court does not need to is because, as was asked, that is not dispositive to the question in this case. What’s dispositive to the question is what was the specific error and what prejudice if any flowed from that error. And that’s why the Government’s again –

J. RYAN: No, not what prejudice flowed from the error, but did the Government dissipate the appearance of UCI.

GOV’T COUNSEL: Yes Your Honor. And that’s the question.

J. RYAN: It’s not their burden to show prejudice. It’s your burden to show that everything was fine and OK after the fact.

GOV’T COUNSEL: The Government agrees Your Honor. Beyond a reasonable doubt the Government must prove that the disinterested observer, understanding all of the facts and circumstances-

C.J. BAKER: Do all of the facts include the Government’s position today as to whether this is appropriate conduct?

GOV’T COUNSEL: I think, based on the footnotes in Lewis, I don’t think that would be an unreasonable position, Your Honor. So again, the Government’s not asking – frankly the Government does not have a Government-wide position as to whether this is appropriate, how this should be conducted, frankly is it not [indecipherable] appropriate, should not generally be conducted-

C.J. BAKER: I understand that we’re here to decide this particular case but might that be of some concern to a court such as ours that the Government is leaving it to the individual judgement of every OIC of every legal office out there as to whether they should rifle through personnel files for judges?

GOV’T COUNSEL: No Your Honor-

C.J. BAKER: Should DoD general counsel look at our files in case we might need to recuse ourselves from this case because we have implied bias?

GOV’T COUNSEL: No Your Honor, the Government is not asking this court to leave it to each individual OIC and each individual trial counsel to make that decision on their own. What the Government is asking is that there’s – with the rules committee that is set up based on the regulations and statutes, that those individual entities look into this matter and determine the propriety based on all of the facts and circumstances.

[Transcript ends at 27:59 of the oral argument audio]

We’ll see. From the tone of the comments to this post, the vultures are already circling.

Still, two things about the dissenters deserve special attention.

First, despite specifically acknowledging during the oral argument (see the transcript produced above) that the Government bears the burden to show that its misconduct was harmless in this case, Judge Ryan’s dissent shifts that burden to Appellant. She begins her dissent with the comment that “because there is no showing that Appellant actually received an unfair trial…” (Diss. op. at 1), and then determins that, “The mere fact that recusal was sought simply does not establish a malevolent purpose as a matter of law, and without a malevolent purpose, there is no basis for dismissal with prejudice” (Diss. op. at 11). Of course, Appellant needed not establish a “malevolent purpose” or that he received an unfair trial; rather, the Government must have established the opposite beyond any reasonable doubt. What’s worse is that Judge Ryan’s dissent merely implies, rather than actually finds, that the Government has met this weighty burden. And there’s this:

The majority inexplicably ignores the fact that there was cause to seek LtCol Mori’s recusal due to a perception of bias based on his personal circumstances and a related ruling that was, based on the law at the time, at least open to question, which is supported by the findings of fact made by Col Richardson, who saw and heard the witnesses at the unlawful command influence motion hearing.

Diss op. at 17. With great respect to Judge Ryan, this is a terribly misguided finding. There was, at absolute and most-charitable best, a reason for a very cautious and respectful voir dire. Though, any trial counsel with an ounce of common sense would have skipped the voir dire and just won the case despite LtCol Mori’s rulings.

Look what happened instead.

Second, Judge Ryan’s dissent is joined by Senior Judge Cox who, while also deserving of great respect, voiced the following disturbing comments during the oral argument of this case:

[Transcript begins at 37:26 of the oral argument audio]

J. COX: Counsel, the way I was hoping to evaluate this case – First of all let me say that any motion to recuse a judge made by a participant in the trial is fraught with danger no matter what you do. I mean, you know, you better be right.

GOV’T COUNSEL: Yes, Your Honor.

J. COX: Because there you are. The question is what is the remedy. No matter what – you say I don’t want Cox to be my judge because I hate the son-of-a-gun and he cheats at cards and you know everything else, but I – he’s not going to grant my motion to recuse so I’ve got to accuse him of something else, well that case is over. Unless he wins his recusal motion. So the question is, I grant the recusal. Now what do we do.

[Transcript ends at 38:12 of the oral argument audio]

Senior Judge Cox must have a remarkably dim view of the ability of military judges to remain neutral and unbiased if he sees a trial-stage recusal motion as “fraught with danger.” Trial-stage counsel shouldn’t fear moving for recusal when necessary and appropriate because the judge will deny the motion and then hold it against the counsel and client. Rather, counsel should be confident that this won’t happen.

Ultimately, this case is nothing but a black eye on the military justice system at a time when we need it least. How (or if) we respond will perhaps define our already precariousfuture.

Case Links:
NMCCA opinion
Blog post: NMCCA judicial voir dire/UCI opinion
Blog post: Top 10 military justice stories of 2012 — #8: A tough year for military judges
Blog post: CAAF petition filed in Salyer
Appellant’s supplement to petition for review
Blog post: CAAF Grants Review in Salyer
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Amicus brief: NIMJ
CAAF argument audio
CAAF opinion
Blog post: Salyer – short and sweet
Blog post: CAAF Decides Salyer
Blog post: Opinion analysis

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