On 31 January, the NMCCA decided United States v. Easterly, and issued an unpublished decision.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