Our #4 military justice story of the year involves five Marines: an accused, a military judge, two prosecutors, and an officer-in-charge.
The accused, Corporal Salyer, was tried in November, 2011, for wrongful possession and distribution of child pornography. At the beginning of the trial the military judge, Lieutenant Colonel Mori, made an odd ruling about the definition of child pornography. He determined that because of the way the case was charged, the definition of child pornography would include an image of a person under the age of 16 but not of a person under the age of 18. The trial counsel, Captain Harley Maya, argued against this interpretation, but she was overruled. Captain Maya then gave an opening statement to the members in which she referred to an item that Lieutenant Colonel Mori had excluded from evidence.
Lieutenant Colonel Mori threatened to declare a mistrial if the Government couldn’t find another way to admit the excluded item, and Captain Maya went for help. She met with Captain Jesse Schweig, the “military justice officer” (a supervisory position). Here’s CAAF’s description of what happened next:
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. . . . 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.
United States v. Salyer, 72 M.J. 415, 420 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). The OIC then called Lieutenant Colonel Mori’s judicial supervisor to “let him know that a significant event was about to happen,” while Captain Maya conducted a voir dire of the judge during which “she asked the military judge how old his wife was when they married.” Salyer, 72 M.J. at 421. Lieutenant Colonel Mori answered that his wife was 17 when they married. But Captain Maya already knew this. She then offered material Captain Schweig obtained from the judge’s personnel record as an exhibit for the trial record.
The next day, Lieutenant Colonel Mori recused himself from the case with a written ruling that cited “LtCol Mannle’s phone call to [his judicial superior] and the trial counsel’s reference to his wife’s age at the time of their marriage.” Salyer, 72 M.J. at 421. A new judge was assigned, and Corporal Salyer was convicted of the possession offense and sentenced to confinement for two years, total forfeitures, reduction to E-1, and a bad-conduct discharge.
We learned about the case a year later, when the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued an opinion affirming the findings and sentence. The NMCCA was unfazed by a prosecutor rooting around in a military judge’s personnel record, and the court asserted an “innocent purpose behind the call” to the judge’s supervisor. United States v. Salyer, No. 201200145, slip op. at 9 (N-M.Ct.Crim.App. Oct. 23, 2012) (link to slip op.).
But CAAF felt differently, and on August 2, 2013, it reversed Corporal Salyer’s conviction and dismissed the case with prejudice. In a 34 page opinion authored by Chief Judge Baker, a majority of the court concluded that, “the unprofessional actions of the Government improperly succeeded in getting the military judge to recuse himself from Appellant’s court-martial.” Salyer, 72 M.J. at 428.
When a prosecutor facing a mistrial suggests that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor digs through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participates in the effort to remove the judge, causing the judge to recuse himself, and the accused is sentenced to two years, but 21 months later an appellate court throws out the case because of the actions of the prosecutors and the officer-in-charge, that might be enough to qualify for a spot on our top ten list.
But that isn’t the end of the story of this case.
Chief Judge Baker’s majority opinion provides some key facts of the case. It turns out that Lieutenant Colonel Mori’s odd ruling about the age for child pornography didn’t really affect the Government’s case at all:
Although it might be reasonably debated whether some of the subjects in the images contained in PE 2 are under the age of eighteen, eight to ten of these images depict subjects who are clearly under sixteen, and some appear to be under the age of ten. Thus, the military judge’s ruling that a minor would be defined as a person under the age of sixteen does not itself appear so critical as to explain the Government’s extraordinary efforts to seek recusal.
Salyer, 72 M.J. at 425 (emphasis added). Chief Judge Baker’s opinion also reveals that the prosecutors held a pretty obvious grudge against Lieutenant Colonel Mori from a ruling he made disqualifying Captain Schweig and his entire office from a different case:
TC: And, sir, an additional voir dire question.
TC: Previously have you disqualified any of the trial counsel on any other case?
MJ: Have I ever disqualified a trial counsel?
TC: Yes, sir.
MJ: Not that I recall. I think there was a potential issue, a potential remedy potentially on one case … but I can’t recall.
TC: United States versus Lauer, sir.
TC: All the trial counsel and the military justice officer.
MJ: Oh, yes, that’s right ….
TC: But that was something you had done in the past was disqualify—
TC: And myself, specifically.
MJ: Okay. Any other questions?
Salyer, 72 M.J. at 421 (omissions in original). Considering the prior disqualification of “all the trial counsel and the military justice officer” from the Lauer case, and the insignificance of the age ruling at issue, it’s hard to avoid the conclusion that what happened in Salyer was nothing more than a thinly-veiled effort by the prosecutors to embarrass Lieutenant Colonel Mori in retaliation for his ruling disqualifying them from Lauer. And as a result, a convicted child porn collector goes free.
But that still isn’t the end of the story of this case.
CAAF heard oral argument in Salyer on April 30, 2013. During that argument, the Government counsel (himself a Marine captain) had an uncomfortable exchange with the court. The exchange is transcribed in my analysis of CAAF’s opinion. In the exchange, Judge Stucky inquired about the existence of “common decency toward a fellow Marine officer who occupies the position of military judge,” Judge Ryan bluntly asked why the Government would defend what happened in this case if it didn’t have to, and Chief Judge Baker wondered, “Should DoD general counsel look at our [personnel] files in case we might need to recuse ourselves from this case because we have implied bias?”
Government counsel replied to this barrage from the court:
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.
The “rules committee” probably means the “Rules Counsel,” which is an officer appointed by the Judge Advocate General of the Navy to administer the Rules of Professional Conduct, pursuant to paragraph 11 of JAGINST 5803.1D. Since
May, 2012 April, 2011, (per SECNAVINST 5430.27D) the Rules Counsel for cases involving Marine Corps judge advocates, like those in Salyer, has been the Staff Judge Advocate to the Commandant of the Marine Corps.
After appellate Government counsel argued that the Rules Counsel should review this case, and CAAF reversed the conviction in an opinion that named and shamed the trial counsel, many readers called for disciplinary action in the comments to this post. And there is certainly a lot of cause for concern. For starters, beyond CAAF’s harsh ruling, the intrusion into the judge’s personnel record almost certainly violated the Privacy Act (5 U.S.C. §552a). Additionally, if the record was accessed electronically, then that access likely exceeded any authorization, in violation of the Computer Fraud and Abuse Act (18 U.S.C. §1030).
Still, it’s hard to say whether the events in this case rise to a level warranting actual disciplinary action, as prosecutors are people and people make mistakes. But it is reasonable to expect that the Government will send a strong signal that this sort of thing isn’t acceptable.
Unfortunately, we won’t necessarily ever know if the Rules Counsel took action in this case because the Navy’s professional responsibility process isn’t totally transparent. But we do know a few things.
For example, we know that CAAF decided Salyer, identifying Schweig by name, on August 2, 2013. We also know that a month later, on September 10, the Commandant’s Career Level Education Board convened (link to board announcement). This is a competitive board that selects company grade Marine officers for resident professional military education, including the chance for a judge advocate to receive a LL.M. at Government expense. And we know that the board released its results a month after that, on October 16, 2013.
And that Captain Schweig was a primary selectee (link to board results).
For all of this, the Salyer case is our #4 story of 2013.