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)).