On 31 January, the NMCCA decided United States v. Easterly, and issued an unpublished decision.

BLUF:  The military judge erred in denying a defense UCI motion, which:

The appellant specifically avers that the Heritage Brief given at Marine Corps Air Station (MCAS), Beaufort, by the Commandant of the Marine Corps (hereinafter “CMC”) and subsequent White Letters, issued by the CMC, tainted the potential members pool and thereby prevented the appellant from receiving a fair trial.

But the error is harmless BRD on these facts.

At trial all agreed that the defense had shown “some evidence” sufficient to shift the burden to the prosecution, in this sexual assault related case.

The military judge further stated: “With the above factors in mind, defense counsel[’s] motion to dismiss based on unlawful command influence is denied. Defense requests for other extraordinary remedies, short of dismissal of charges, are also denied.” Id. at 70. The trial defense counsel then specifically asked the military judge if he was finding no actual or apparent unlawful command influence, and the judge answered in the affirmative. Id.

Despite stating that his ruling applied to both, the military judge’s findings lack any reference to either actual or apparent unlawful command influence or their respective legal tests. Furthermore, despite the fact that the military judge earlier agreed that the defense had met its initial burden of offering “some evidence” of unlawful command influence, his findings do not address how the Government effectively met its burden of either disproving the predicate facts, proving that those facts did not constitute unlawful command influence, or proving that any unlawful command influence would not affect the fairness of the proceedings. [United States v.] Biagese, 50 M.J. []at 151 [C.A.A.F. )]. In these regards, the military judge clearly erred.

Appellant did not push the issue of actual command influence, likely because on the facts there is insufficient evidence.  NMCCA assumed an appearance problem, and moved to address whether or not the prosecution had satisfied their burden.  The court explains:

The best indicator of the lack of apparent unlawful command influence on the merits is the fact that the appellant was acquitted of both specifications of rape, the most serious offenses on the charge sheet and a principal focus of the CMC’s comments during the Heritage Brief and White Letters.

In other words, if the result favors the Appellant the government has met its burden – on appeal.  It’s harmless error BRD.  But what if Appellant had been convicted, and . . . So the issue remains alive for another day and another accused who is convicted?  

I’m reminded of a comment made by a judge while litigating one of my UCI motions recently — “well people are still being acquitted.”  I like this judge and his comment was made in a light-hearted fashion, so the comment shouldn’t be taken out of context.  And the client was acquitted.  But the comment and Easterly do raise something of an interesting question.  At what point does the conviction rate become evidence of UCI, if at all?  Statistical analysis has been used in other areas of the law, particularly to try and show discrimination for example.  If I recollect, the AF stats at the time of our motion showed a 57% conviction rate for sexual assaults.  I don’t recollect seeing a comparative rate(s).  

Anyway, the Easterly court then assessed what impact if any there was from potential UCI during the sentencing phase of trial.  Appellant was sentenced to, “be reduced to pay grade E-1, to forfeit all pay and allowances, to be confined for a period of two years, and to be discharged with a bad-conduct discharge.”

The appellant was sentenced for committing the following misconduct: making a false official statement; assault consummated by a battery; and, two specifications of adultery.  These offenses carry a maximum punishment of seven years and six months confinement, reduction to pay grade E-1, total forfeitures, and a bad-conduct discharge. During argument, the trial counsel asked for the maximum sentence; the appellant, in his unsworn statement and argument on sentence made by the trial defense counsel, did not specify a particular punishment but asked for an appropriate sentence.  (Yes, emphasis added.)

In determining no UCI impact on sentencing the court seems to consider the following;  Appellant was guilty of what he was convicted of, the Appellant conceded as much during sentencing, he didn’t get the requested maximum punishment.  And there was no evidence of any adverse impact in presenting a sentencing case, such as “the lack of any indication in the record that any witnesses failed or refused to testify on the appellant’s behalf because they felt intimidated or discouraged from participating in the trial.”

So, the question remains, what if the accused were found guilty, and got the max or close to it?  I’m not convinced Easterly actually resolves the issue of how the government has or has not rebutted the issue at the time of trial.  Certainly the lack of evidence that the defense has not been interfered with would be relevant.

9 Responses to “The heritage of UCI”

  1. RKincaid3 says:

    Thanks, Mr. Cave.  Good post.  Alas, once again, I am amazed at the willingness of the courts (and of many, many people) to accept the premise that one’s subjective satisfaction with the result of a trial is ipso facto evidence of a successful system, or in this case, the fact that the UCI didn’t really affect the accused based solely upon a review of the transcript and verdict means that there was really no UCI.  You noted that:

    In other words, if the result favors the Appellant the government has met its burden – on appeal.  It’s harmless error BRD.  But what if Appellant had been convicted, and . . . So the issue remains alive for another day and another accused who is convicted?  
    I’m reminded of a comment made by a judge while litigating one of my UCI motions recently — “well people are still being acquitted.”  I like this judge and his comment was made in a light-hearted fashion, so the comment shouldn’t be taken out of context.  And the client was acquitted.  But the comment and Easterly do raise something of an interesting question.  At what point does the conviction rate become evidence of UCI, if at all?

    That is a vital question…at what point do we set up a system where regardless of the outcome, the process is JUST?  
    The court stated:

    In determining no UCI impact on sentencing the court seems to consider the following;  Appellant was guilty of what he was convicted of, the Appellant conceded as much during sentencing, he didn’t get the requested maximum punishment.  And there was no evidence of any adverse impact in presenting a sentencing case, such as “the lack of any indication in the record that any witnesses failed or refused to testify on the appellant’s behalf because they felt intimidated or discouraged from participating in the trial.”

    If UCI is in fact substantiated–established as a matter of fact–how is it that we can then justify looking at the result to determine the effect of the UCI?  If UCI is in fact the bane of military justice, and if it is in fact illegal–to be snuffed out of existence–then once it has been established as having occurred, a true justice system would craft an appropriate resolution that punishes the government for engaging in the prohibited practice sufficient to discourage it in the future.  As it stands, so long as the government can mitigate its conduct through a some-what favorable verdict for the accused (e.g., sentence is not as bad as it could have been), then their conduct–conduct which should NOT have occurred to begin with–is now forgivable so long as there is no demonstrable effect upon the accused.  So the easy answer for the government to cure its own UCI is simply to always ask for the max punishment in cases wherein the max is not likely to be imposed in those cases where UCI is established–and voila–UCI is no longer the bane of military justice. 

  2. SFC V says:

    It wasn’t just the sentence that made any UCI harmless.  It was the fact that the panel acquitted the acused of the sexual assault charges.  If the panel were truly influenced by the comments from the commandant would they have really acquitted the accused of rape?  I think sometimes we overestimate the prejudicial effect of various things and undervalue the instructions given to panels or juries.  These people almost always follow the instructions and take to heart a courts admonition to only consider the evidence admitted, the law as given by the judge, and decide each charge on an individual basis.  In this very case the TC asked for the max because he thought he should be punished for charges of which he was acquitted.  The panel clearly rejected this.  IMO, you don’t punish UCI by giving an accused a windfall when such wouldn’t cure the problem.  You put a stop to the problem by punishing the offender.  In a lot of cases an accused will be entitled to relief as the misconduct will actually prejudice them.  What would have a greater impact on rooting out UCI, giving the accused relief or punishing the person who committs the UCI? 

  3. Advocaat says:

    Concur w/ @SFC V; granting relief to an accused when appropriate has zero impact on the individual who committed the UCI (or the unlawful search, or the coercive interrogation, or the failure to turn over Brady material).  As long as the foxes are guarding the hen house, phrases like the “mortal enemy of military justice” ring hollow.

  4. phil cave says:

    V., you are of course right.
    But, how many have been disciplined over the years for UCI?
    If, the foxes are on guard, then should not they be punished by a dismissal.
    Which is more likely to have a hortatory effect – a dismissal for UCI or a non-existent policy of out of court enforcement.
    Keep in mind that the foxes in Easterly argued it was not UCI, including the foxes at appellate government.  So, while the court finds UCI, the foxes don’t believe it and will surely blame a paternalistic court that doesn’t get it., and if they did got it wrong.
    While I agree that in this case the UCI didn’t affect the result, will you say the same if he (or another) is convicted?
    That’s the problem with this particular issue.

  5. k fischer says:

    2 years and a BCD for adultery, false statement, and assault consummated by a battery?  If the battery wasn’t that egregious, then the sentence sounds kind of harsh, unless the panel took into account the rape charges for which the accused was acquitted.

  6. Charlie Gittins says:

    Well, CAAF knows that there has never been anyone in the history of the UCMJ prosecuted for UCI, and there are cases where intentional interference has been established (Gleason, 43 MJ, is one case I am personally acquainted with), not that intent is an element.  Given the lip-service that is paid to unlawful command influence by the senior leadership, a couple or more high profile dismissals would be good for the system and perhaps cause senior leaders to reflect on their true job — to look after all of the troops, even the accused.  After all, by the time CAAF gets done with the case, the accused has served all his time, in all likelihood, and it is just a matter of back pay and an admin discharge as provided in Articlde 75 UCMJ.  Yeah, some BCDs/DDs will get overturned into GUHC characterizations and the Government will be out some money, but the good it would do the system to actually PUNISH UCI would be a breath of fresh air.  OK, I’ll stop hallucinating now.  As if. . . . . . 

  7. Zachary D Spilman says:

    Given the lip-service that is paid to unlawful command influence by the senior leadership, a couple or more high profile dismissals would be good for the system and perhaps cause senior leaders to reflect on their true job — to look after all of the troops, even the accused. 

    A high-profile dismissal for UCI you say? Perhaps one with flagrant prosecutorial misconduct, named-and-shamed Government counsel, political intrigue, and a child porn collector who goes free in the end?

    It’s called United States v. Salyer, our #4 Military Justice Story of 2013.

  8. k fischer says:

    CG, 
     
    If the CMC was punished for his Heritage brief, then we would end up in a situation where Senator Gillibrand could support him and use his court martial as a platform to justify taking the UCMJ out of the hands of commanders.  It makes sense:  “Look at what is happening to the CMC!  We need to take the UCMJ out of the hands of Commanders because it is hindering their ability to lead.  They can’t even say that a sexual offender should be dishonorably discharged out of fear of facing court martial for UCI.”  To me, that argument is the best argument out there and could be made right now with all those motions flying around against the CINC and the CMC.  
     
    And, let’s say a Commander has a Soldier who s/he thinks should be prosecuted for Sexual Assault, but the division of JAGs who are created to act like a DA’s office and is responsible for prosecuting said Soldier wants to dismiss the charges after the 32, then the Commander can bully the JAG with the CNN test, “You better get this guy out of my unit, or I’m going to call Senator Gillibrand and tell her you are a rape apologist.  I have her on speed dial, dontchaknow?”    Of course, what’s a Commander to do when he has a drug user or barracks thief and his independent JAG doesn’t want to prosecute because he or she has 10 sexual assault trials coming up.  I don’t think Senator Gillibrand would really give two squats about good order and discipline in that scenario.
     
    If you take the Commander out of the UCMJ, then what happens to the mortal enemy of military justice?  It dies a quick death, quickly followed, IMO, by good order and discipline.  But, in the end, I really have faith in whatever Washington DC revamping the UCMJ;  I mean, look how great our health care system is running and what a stellar job they did with the Article 120 amendments……
     

  9. Seriously? says:

    Seriously?  The CMC goes on tour and–looking them in the eye–excoriates nearly every Marine leader for not holding those who commit “absolutely disgraceful and heinous” acts such as adultery (“he was sleeping with a Corporal and he was married”) accountable (“we have got a problem with accountability”).   He tells every one of these members that he is “very, very disappointed” and then asks them why they’ve become “so soft” by allowing these “predators” to stay in the Corps.  Yet the court finds no Apparent UCI (AUCI)in the sentence.  Saddened, I dissent.
     
    The court starts off by “assuming without deciding” (sigh…) that the Heritage Brief created the appearance of AUCI, but that the Gov has proven BARD that the proceedings were not compromised.  How?  First, two witnesses testified, however, there’s no discussion of whether they said anything that would have contradicted the CMC.  Next, the court finds “lack of any indication” that other witnesses … refused to testify.”  Not only does that sound like a burden shift, but any first year JAG could articulate a convincing argument that, in the face of all the CMC has done to influence his Marines, a “lack of any indication” that they were so influenced doesn’t get close to being BARD.
     
    So, the court buttresses its argument by considering the sentence.  However, where does that leave the practitioners?  Does that mean AUCI in sentencing cannot be determined until AFTER the sentence is announced?  Is waiting for the sentence really how we want to combat the “mortal enemy of military justice?”       
     
    I agree with V that a windfall for a guilty party is problematic.  However, just as the exclusionary rule is prophylactic, so too may dismissal disincentivize individuals who do not like the results of courts martial from using their bully pulpit/rank to exert influence.  Punish those who commit UCI?  I’d settle for a judiciary that acts upon its solemn responsibility to protect the process.  Although the President demands DDs, the CMC all but orders Marines to kick out those who commit crimes, Congress withholds promotions or publicly castigates CAs for reasonably exercising their discretion, or SECNAV improperly weighs in on current cases, our judiciary avoids the issue, tortures logic, or otherwise saves the government from the ramifications of there misdeeds, while the “mortal enemy” runs rampant.  Unfortunately, we have no one to look to but the judiciary for help.  They have systematically failed to provide it.  They failed again here.  God help us if CAAF fails as well. 
     
    If they don’t.  If CAAF finds AUCI, then fixing the SNAFU caused by the Heritage Brief is an easy fix–Marines may neither convene, nor sit on, nor judge a case where the accused is a Marine.  At least not until the CMC leaves active duty.  Such a ruling would certainly result in the immediate departure of the CMC, an action that would send a clear message and one that many who believe in our military justice system would argue is long past due. 
     
    Judiciary, over to you…