In an order issued late last month, the Air Force CCA granted a Government interlocutory appeal in a sexual assault general court-martial, reversing the military judge’s ruling dismissing the charges without prejudice. United States v. Mobley, Misc. Dkt. No. 2013-21 (A.F.Ct.Crim.App. Dec. 20, 2013) (en banc) (link to order)

“[T]he military judge found that certain statements of the Air Force Chief of Staff and the President – in the context of the current political climate surrounding sexual assault in the military – presented some evidence of UCI.” Order at 2. Unlawful Command Influence (UCI) is a due process issue, and when the Defense presents “some evidence” of UCI at the trial, then the Government must disprove the UCI or its prejudicial effect beyond a reasonable doubt.

To meet this burden, the Government counsel offered documentary evidence including an affidavit and a memorandum from the commanders involved in the case. Based on this evidence, the judge found that “the preferring commander’s affidavit sufficiently demonstrated beyond a reasonable doubt that the preferral of charges was not tainted by UCI.” Id. But he found that a memorandum from the convening authority “did not demonstrate beyond a reasonable doubt that either actual or apparent UCI was absent” from the referral decision. Id. He then dismissed the charges without prejudice (allowing the Government an opportunity to resurrect the charges in a cleansed environment)

Government counsel then moved for reconsideration, proffering that he would call the convening authority to actually testify (telephonically) at a future hearing. But:

The military judge denied the Government’s motion for reconsideration. He noted the Government had been in receipt of the defense’s motion to dismiss for an extended period. He also stated that this case presented “greater principles of the critical right to a trial untainted by unlawful command influence.” He stated the “needs of fair justice and appearance are not served by granting reconsideration,” as granting reconsideration after the Government already had an opportunity to meet its burden would “erode the appearance of efficacy in this court-martial in light of the important issue decided upon.” He also observed that the Government was not left without recourse, as it could re-prefer the charges and specifications. The Government’s Article 62, UCMJ, appeal followed the military judge’s denial of its reconsideration motion.

Order at 3. In other words, the judge found that the Government had its chance to present evidence, and didn’t deserve another. But the CCA finds that “the military judge abused his discretion in denying the Government’s motion for reconsideration.” Order at 4.

The court explains:

Under the unique facts of this case, however, we find the military judge erred in not reconsidering his ruling and hearing the convening authority’s testimony. Once the military judge ruled against the Government, trial counsel promptly arranged to have the convening authority available to testify telephonically. In fact, it appears he was working to arrange for the convening authority’s testimony even before the military judge issued his ruling. Although the convening authority was a two-star general deployed to Afghanistan, he was nonetheless available to provide testimony immediately after the military judge’s ruling. The military judge could have easily heard the convening authority’s testimony, testimony he had already indicated may have affected his ruling. No significant delay would have resulted in hearing the testimony and reconsidering the ruling.

Order at 5. The CCA actually seems to blame the military judge for the trial counsel’s failure to present evidence at the allotted time:

The military judge was bound to consider not only the interests of the accused in a fair trial, but the interests of the accused, the purported victim, and the Government in a timely and just resolution of this matter. Hearing the testimony of the convening authority may or may not have altered the military judge’s ruling, but it would have developed a full record and provided the military judge with evidence he had already stated he would have found helpful.

Order at 5. The court – where appellate delay was the source for our #9 story of 2013 – also has the chutzpa to raise concerns about “promptly resolving the issue”:

Instead of promptly resolving this issue, he dismissed the charges without prejudice, requiring the Government to return to the pre-preferral stage even though no error was found with respect to preferral or the Article 32, UCMJ, 10 U.S.C. § 832, investigation. The military judge explicitly recognized the defense’s UCI motion presented “an issue both complex and significant.” Where such an important issue was at stake, where the Government was prepared to present evidence the military judge required, and where the interests of timely justice would have been served by simply hearing the testimony, we find the military judge’s actions in denying the motion for reconsideration to be clearly unreasonable, and therefore an abuse of discretion.

Order at 5-6. A few issues here. First, the Government was not “prepared to present evidence the military judge required.” The trial counsel’s lack of preparation was the reason for the motion for reconsideration. Second, the military judge did not “require[]” the additional evidence. Rather the Government, which had the burden of proof, required the evidence. The military judge reached his ruling just fine. Finally, outside of dismissal, the judge didn’t have many other remedies at his disposal. A military judge cannot withdraw a case (the normal method of un-referring), other than by declaring a mistrial. But a mistrial declared before trial practically demands another referral, which is a poor remedy for UCI at the referral stage.

Maybe now the Defense will move for reconsideration at the CCA, and offer an alternative theory…

But the CCA’s decision is not unanimous. One judge dissents:

The Government was twice provided an opportunity to meet its burden. I would not require the military judge to provide them a third attempt.

Order at 8 (Mitchell, J. dissenting).

And in an interesting but unrelated note, the order states that the court decided this case en banc, but there is no mention of Judge Soybel (see United States v. Janssen, No 14-0130/AF (CAAFlog case page)).

9 Responses to “The Air Force CCA wants the Government to get another chance”

  1. TC says:

    While there’s no excuse for the TC not using a proper affidavit (or for failing to put enough info in it from the CA), these motions put TC in a tough position.  Defense file them in every single sexual assault case.  TC doesn’t know until halfway through the 39(a) whether the MJ will determine that the defense has even met their initial burden.  Should TC have a flag officer standing by in every sexual assault case to testify in case the MJ determines the defense has met the initial burden?  According to this judge yes, but that’s hardly realistic, especially in regions where the CA is referring dozens of sexual assault cases a year.  It would be helpful if the MJ could make the determination that defense has met the initial burden (which could be done in advance of the 39(a) when the defense’s evidence is just statements of senior DoD officials), and then allow TC to arrange for the CA to testify (or make the determination that an affidavit provides proof BRD).  The accused’s rights aren’t harmed in any way, and it prevents a flag officer from having to stand by unneccessarily.  It strikes me as absurd not to give TC a day to arrange for a flag officer to testify from Afghanistan.

  2. Zachary D Spilman says:

    So the Government gets an advisory opinion before it must present evidence?

    Does this work in reverse? May an accused who waits for the panel’s verdict request reconsideration in order to present his defense?

  3. TC says:

    It’s not an advisory ruling, it’s a determination on whether the defense has met their initial burden.  If the defense evidence is all provided ahead of time, and it consists solely of comments made by senior DoD personnel, I see no reason why the MJ shouldn’t let both parties know defense has met their burden (or not) so that trial counsel is on notice that the burden has shifted.  If defense has failed to meet their burden, it’s unnecessary to have a flag officer standing by in Afghanistan, waiting to provide entirely moot testimony.  If they’ve met their burden, the CA is then not wasting his time by being available to testify. Seems like a reasonable way of doing things. 

  4. af_dc says:

    TC, if the case is important enough for the CA to refer to trial, it’s important enough to have said CA (flag officer) on standby to testify if necessary.

  5. Phil Cave says:

    Agree with TC.
    The defense first has – an admittedly low – burden to produce something to shift the burden.  

    The burden of presenting sufficient evidence to raise the issue of actual UCI rests with the appellant.  The threshold for raising the issue of UCI at trial is low, but requires more than mere allegation or speculation.

    United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citations omitted).
    My view is that the rather simple affidavits the government is offering aren’t sufficient.
    I have seen one CA out there who has himself published to those on his base and his subordinate units, something similar to what Sec. Hagel put out.  And still nothing from the Commander-in-Chief telling people he wants constitutionally fair trials.  He’s AWOL on the subject.

  6. Zachary D Spilman says:

    Sorry, but the facts in the court’s order don’t support the view that the trial counsel was denied an opportunity to get his case together after the burden was shifted. Rather, it appears that the TC thought he could win the motion in a single appearance, and then started whining when it didn’t work out like he planned. 

    Had the judge merely shifted the burden and then denied the government a continuance to obtain its witnesses, that would be a different case. But this case involves an apparent tactical decision by government counsel to fire all of his ammunition at once. That was a bad call, but it’s the sort of bad call that doesn’t get an accused relief (in the IAC context) all the time. Like the accused, the government should be stuck with its deliberate, though poor, choices.

  7. Dude says:

    It is interesting that the court elected not to even address the basis the military judge offered for not granting the government’s motion to reconsider – that doing so would further the appearance that the *military judge* was tainted by UCI.  Not touching the judge’s stated rationale, and yet finding the judge’s decision to be defective seems like a glaring oversight by AFCCA.  Further, it tends to make folks wonder whether AFCCA itself is tainted by UCI – they don’t even want to even talk about the possibility of whether judges might appear to be impacted by the stated policy objectives of their Commander in Chief and superior officers.  Given that each member of each service court serves at the pleasure of that President and their respective JAGs, it hardly seems like they would be immune to the perception of UCI bias that the military judge feared.

  8. TC says:

    I never said the MJ was wrong, nor did I say the TC handled things correctly. My comment was about these now-boilerplate UCI motions generally, not this case in particular.  I just suggested a potentially more efficient way to handle these motions. Despite af_dc’s comment, the needs of the military are hardly well-served by forcing the GCMCA to appear at a 39(a) in every sex assault case, especially those in which the defense doesn’t even meet their initial burden. 

  9. Richard Stevens says:

    TC.  Your reference to them as “boilerplate UCI motions” has (intended or otherwise) a negative connotation.  The reason these motions are filed over and over again is because the UCI from various government and DoD officials continues and there has not yet been a definitive appellate court ruling one way or the other.  Until the issue is settled, defense counsel raise what they believe, in good faith, are issues in these cases.