As Phil discussed in this post, the Navy-Marine Corps Court of Criminal Appeals recently decided United States v. Easterly, No. 201300067 (N-M.Ct.Crim.App. Jan 31, 2014) (link to slip op.), finding that the trial military judge erred in his ruling on a Defense motion to dismiss for unlawful command influence (UCI), but concluding beyond a reasonable doubt that the trial was not infected by UCI and that an objective, disinterested observer, fully informed of all the facts and circumstances of the case, would not harbor a significant doubt as to the fairness of the trial or sentence.

The case was a sexual-assault general court-martial tried at Marine Corps Air Station Beaufort, SC, in October 2012. The appellant – a married Sergeant – was charged with adultery in connection with his sexual relationship with one woman (who was, at the time, married to a different junior enlisted Marine who was deployed to Afghanistan), and was charged with rape, assault consummated by a battery, adultery, and making a false official statement in connection with a sexual encounter with another woman and his subsequent denials to criminal investigators. The appellant pleaded guilty to the adultery offense involving the married woman and, after a contested trial before a panel of members with enlisted representation, he was convicted of the other adultery and of the assault consummated by a battery involving the other woman, and of making the false official statement. He was acquitted of two charged specification of rape. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

But to understand Easterly, you need to know some recent Marine Corps history, and you need to understand UCI.

The sexual encounters that formed the basis for the charges occurred in December 2011 and January 2012. Soon afterward, in March 2012, and seemingly totally unrelated to this case, the Commandant of the Marine Corps issued White Letter 1-12, which was a letter to Marine leaders on the subject of “Leadership and Conduct,” and it referenced “a number of recent, widely-publicized incidents [that] have brought discredit on the Marine Corps and reverberated at the strategic level.” The Commandant then began a tour of Marine Corps installations during which he gave a presentation that became known as the “Heritage Brief.” A video of the presentation was also posted on the Marine Corps website (video available here), and the version given at Marine Corps Recruit Depot Parris Island was transcribed (transcript available here).

Whether you watch the video or read the transcript, you’ll see that the Heritage Brief was a blunt message from the Commandant about misconduct and its effect on the Marine Corps. Sexual assault and the Corps’ response to sexual assault issues was a major theme. So too were the sentences adjudged by courts-martial and the decisions of administrative boards.

The Commandant followed his Heritage Brief tour with White Letter 2-12, dated May 3, 2012, and entitled “Sexual Assault.” This White Letter focused on the Commandant’s concern with the sexual assault issue and his desire to focus the Corps on addressing it. Alone the White Letter was uncontroversial, but when coupled with things the Commandant said during the Heritage Brief, it caused some to raise questions of unlawful command influence. This included the claim raised by the trial defense counsel and considered by the NMCCA in Easterly.

Folks like to say that UCI is “the mortal enemy of military justice.” United States v. Gore, 60 M.J. 178, 178 (C.A.A.F. 2004) (quoting United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986)). But I’ve never been a fan of that phrase. Rather, the tension between the command objective of discipline and the judicial objective of justice long-predates the establishment of the UCMJ, and resolving that tension was a major reason that Congress created the Code. Shortly after the Code’s enactment, the Court of Military Appeals (CMA; the former name for CAAF) remarked that “[j]ustice can be dispensed and discipline maintained [only] if one is not permitted to overwhelm the other.” United States v. Littrice, 3 U.S.C.M.A. 487, 492 (C.M.A. 1953). This perspective was restated in 1960 in one of my favorite paragraphs from the Powell Report:

Once a case is before a court-martial, it should be realized by all concerned that the sole concern is to accomplish justice under the law. This does not mean justice as determined by the commander referring a case or by anyone not duly constituted to fulfill a judicial role. It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote discipline.

Concerns over “command influence” (eventually called “unlawful command influence”) also brought about the creation of the post-trial fact-finding hearing known as a Dubay hearing, as the CMA realized that such fact-finding was necessary because “command control is scarcely ever apparent on the face of the record.” United States v. DuBay, 17 U.S.C.M.A. 147, 149 (C.M.A. 1967). Dubay and numerous companion cases were about whether the Commanding General of Fort Leonard Wood violated the prohibition on command influence found in Article 37. The CMA invented the post-trial fact-finding hearing in 1967 as a way to identify command influence, and Congress soon followed suit in its own way, by strengthening the command influence prohibitions of Article 37. Pub.L.No. 90–632, § 2(13), 82 Stat. 1338 (the Military Justice Act of 1968) (link).

But UCI issues persisted, and in 1986 the CMA articulated the Constitutional dimensions of the problem, stating that, “The exercise of command influence tends to deprive servicemembers of their constitutional rights.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). It was in Thomas that the court first made its famous “mortal enemy” declaration, but it took a few more years before the court settled on a clear test for this constitutional issue.

At the end of the 20th century, a series of procedures were formalized to enable a trial court to identify the existence of command influence in a particular court-martial and fashion an appropriate remedy. See United States v. Biagase, 50 M.J. 143, 149 (C.A.A.F. 1999). First, the Defense must raise the issue by presenting “some evidence” of “facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings.” Biagase, 50 M.J. at 150 (citing United States v. Ayala, 43 M.J. 296, 299 (C.A.A.F. 1995); United States v. Allen, 33 M.J. 209, 212 (C.M.A. 1991)). Once this low threshold is crossed by the Defense, the Government must then “either show that there was no unlawful command influence or show that the unlawful command influence will not affect the proceedings.” Biagase, 50 M.J. at 150 (citing United States v. Gerlich, 45 M.J. 309, 310 (C.A.A.F. 1996)). The Government may accomplish this at the trial level in one of three ways:

(1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the military judge . . . that the facts do not constitute unlawful command influence; (3) . . . by producing evidence proving that the unlawful command influence will not affect the proceedings.

Biagase, 50 M.J. at 151 (citing Gerlich, 45 M.J. 309). Whichever of these ways the Government elects to proceed, it “must persuade the military judge . . . beyond a reasonable doubt.” Biagase, 50 M.J. at 151 (citing Gerlich, 45 M.J. 309; United States v. Stombaugh, 40 MJ 208 (C.M.A. 1994); United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997)). The Government must satisfy this burden regardless of whether the issue is the existence of actual command influence of the court-martial, or merely the appearance of command influence of the court-martial. See United States v. Stoneman, 57 M.J. 35, 42 (C.A.A.F. 2002) (remanding for a DuBay hearing to determine “whether there is an appearance of unlawful command influence”).

This high burden on the Government – to disprove beyond any reasonable doubt the mere appearance of influence or its effect on the court-martial – reflects the constitutional nature of the problem. Only by overwhelmingly disproving the actual or apparent presence of influence, or by proving its harmlessness, can the Government satisfy its obligation to ensure that the accused receives a fair trial.

Yet regardless of the showing made by the Government, the military judge is “the last sentinel” who protects the court-martial from the effects of command influence. Biagase, 50 M.J. at 152 (citing United States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998)). “[The court] has long recognized that, once unlawful command influence is raised, ‘we believe it incumbent on the military judge to act in the spirit of the Code by avoiding even the appearance of evil in his courtroom and by establishing the confidence of the general public in the fairness of the court-martial proceedings.’” United States v. Stoneman, 57 M.J. 35, 42 (C.A.A.F. 2002) (quoting United States v. Rosser, 6 MJ 267, 271 (CMA 1979), overruled on other grounds by Biagase, 50 M.J. 143).

And with this in mind, Marine Corps Defense Counsel everywhere began to ask military judges to take action in the wake of the Commandant’s Heritage Brief and White Letter 2-12. During the Heritage Brief, the Commandant characterized decisions of administrative boards to retain Marines as “a problem with accountability,” and “a lack of accountability that just befuddles me.” He referred to the actions of courts-martial as “ecumenical,” and wondered “why we have become so soft.” And he concluded his presentation of the Heritage Brief with a discussion of potential collateral consequences of lenient outcomes. He observed that “should the people ever lose that conviction as a result of our failure to meet their high, almost spiritual, standards, the Marine Corps will quickly disappear.”

The Heritage Brief involved a personal message from the Commandant that the Marine Corps needed to get tough on misconduct, and the Brief’s aftershocks became a recurring topic in courts-martial. Many defense counsel (including me) believed that the Commandant’s actions made it impossible for any Marine to get a fair trial by members without at least some remedial actions. But some went even further, seeking dismissal of charges with prejudice (meaning the accused could not be re-charged), despite that fact that “dismissal is a drastic remedy,” even in the context of command influence of a court-martial. United States v. Harvey, 64 M.J. 13, 21 (C.A.A.F. 2006).

The Trial Defense Counsel in Easterly took such an approach:

The relief requested was a dismissal with prejudice of all referred charges and specifications. In the alternative, the trial defense counsel requested the following potential curative measures from the military judge: an increase in peremptory challenges for a total of four; that the Government receive no peremptory challenges; that no officers or SNCOs sit on the appellant’s court-martial panel; and, sentencing limitations in which a punitive discharge or confinement could not be considered by the members.

Easterly, slip op. at 5 N.3. This was, I think, a mistake by Trial Defense Counsel. I recognize the value of asking for all and settling for some, but most of these requested remedies – and particularly either dismissal with prejudice or the sentence limitations – are so extreme as to border on absurd in a case where there is no direct link between the claimed UCI (the Commandant’s actions) and Appellant. They presume that Appellant could never receive a fair trial in the wake of the Heritage Brief, regardless of the any lesser remedies that might have been employed by the judge. Getting a fair trial may be harder than it used to be, but I don’t believe that it’s impossible.

But the twist in Easterly isn’t Trial Defense Counsel’s actions. Rather, it’s the actions of the military judge who heard and denied the Defense motion for relief from UCI. When the issue was litigated, the Defense began with a presentation of evidence after which “the Government conceded, and the military judge found, that the defense had made a colorable showing of ‘some evidence’ and that the burden shifted to the Government.” Easterly, slip op. at 10. The burden was then on the Government to disprove the existence and appearance of the influence or to prove its harmlessness.

However, the military judge didn’t exactly apply the burden to the facts. After making eleven “findings” (the CCA’s opinion puts this word in quotes) that are a blend of factual determinations and legal conclusions:

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. Biagese, 50 M.J. at 151. In these regards, the military judge clearly erred.

Easterly, slip op. at 11 (emphasis added). Notably, this was a verbal ruling. It appears that the military judge did not make any written ruling on this issue.

This occurred at a pretrial hearing, and a different judge presided over the trial. During the oral argument of this case at the CCA (link to audio), Appellate Defense Counsel argued that the pretrial ruling prevented the Defense from revisiting the UCI issue during the panel selection phase. And he made a good point. When a military judge makes a specific finding of “no actual or apparent unlawful command influence,” a defense counsel (particularly a military defense counsel who is normally subordinate to the judge) is unlikely to keep pushing the issue in later proceedings, even with a different judge. This creates a dangerous situation that appears to exist in Easterly: The military judge “clearly erred” in his denial of the Defense motion, binding the parties for the remainder of the proceedings to that clearly erroneous ruling.

The CCA doesn’t address this directly, but it does poke around the edges:

The appellant does not contend and we do not find any evidence of actual unlawful command influence at trial or on appeal. Major Emerich, the military judge who heard and decided the unlawful command influence motion, was replaced by Lieutenant Colonel (LtCol) Miracle for the trial. LtCol Miracle did not restrict voir dire and liberally granted challenges for cause, excusing nine of the 16 original members. Seven potential members were dismissed as a result of challenges for cause by the trial counsel, and the defense objected to the removal of only one of them. The military judge sufficiently explained on the record his concern for actual and implied bias concerning this potential member and granted the challenge.

Easterly, slip op. at 12. It’s unclear why Appellant conceded the absence of actual influence, since the trial claim seems to be that the Commandant’s actions might have actually influenced the members (with the Government having the burden to disprove this). But the CCA’s focus on the fact that the trial judge “did not restrict voir dire and liberally granted challenges for cause,” makes me wonder what that voir dire included. Did the Defense question the members about the Heritage Brief? Were the members asked if they agreed with the Commandant that “the Marine Corps will quickly disappear” if they do not uphold the “high, almost spiritual, standards”? Does the record identify if any of the members thought that the Marine Corps has become too “ecumenical” or “soft”? The court doesn’t say, perhaps because the Defense didn’t press any of these issues after the first judge found no UCI.

The court does say that:

The panel members who either heard the CMC’s Heritage Brief or read White Letter 2-12 were questioned during voir dire with respect to whether either would have an adverse impact on their ability to render an impartial judgment. See Stoneman, 57 M.J. at 41. The members’ answers demonstrated that they did not feel any pressure as a result of the CMC’s Heritage Brief or White Letters, and there is no evidence that they believed they had to achieve a certain outcome or an expected result from the appellant’s court-martial. We also note that no member of the appellant’s court-martial panel was challenged for cause by the defense based on attendance at the Heritage Brief or because they had read the White Letters.

Easterly, slip op. at 12-13 (emphasis added). Asking (likely during en banc voir dire) whether the Brief or White Letter would “have an adverse impact on their ability to render an impartial judgment” is an awfully weak inquiry. The type of person who would answer that question in the affirmative would likely have already been disqualified, and those suffering from the worst influence either wouldn’t realize it or wouldn’t admit it. A more probing and frank inquiry is needed for this issue. But why would the Defense have made such an inquiry, or a subsequent challenge for cause, when a military judge already ruled that there was “no actual or apparent unlawful command influence”?

This eventually starts to sound like an ineffective assistance of counsel issue, but I don’t think either side can be faulted for relying on a military judge’s ruling that turns out to be erroneous. Particularly when the ruling was verbal and there was no written decision for a basis for later arguments.

Rather, I think the fault clearly lies with the military judge, and it may well rise to the level of warranting a fact-finding hearing to determine whether the judge himself was improperly influenced by the Commandant’s remarks. The CCA’s finding about the judge’s ruling are pretty disturbing. “[H]is findings do not address how the Government effectively met its burden” under any of the three ways it can do so, writes the CCA. Slip op. at 11. At its essence, the judge’s ruling simply agreed with the Prosecution without explaining why. This is hardly a small matter. Appellant faced a maximum sentence that included confinement for life without the possibility of parole, and the Defense motion addressed the fundamental question of whether Appellant could receive a fair trial. Moreover, the motion was clearly not frivolous, nor did it lack merit (after all, the Defense presented enough evidence to shift the burden to the Government). That a military judge would deny such a motion outright, without conducting the analysis required by the law or even providing a written opinion, is a cause for real concern. So too is the question of why the Defense did not press harder for a detailed ruling.

Unfortunately, this case is a bad vehicle for such concerns, because of other concessions made during the trial:

Additionally, the trial defense counsel, in arguing against a finding of guilty on the rape specifications, conceded in closing argument that the appellant had sex with Ms. L (adultery) and that he bit her multiple times after she told him to stop (assault consummated by a battery):

And that’s what the facts truly indicate. Sure, this is adultery. Okay. [The appellant] was married. He had sex with Ms. [L]. Got it. Adultery. Fine. I would agree this is assault, too. I mean, he bit her or sucked on her. She didn’t want it. That’s an unlawful touching. So [the appellant] assaulted her and that assault was consummated by battery, touching, unlawful touching.

Record at 814. In conceding the adultery charge, the trial defense counsel implicitly conceded guilt on the false official statement charge, in which the appellant disavowed having sexual relations or intercourse with Ms. L. Finally, we find that the evidence submitted at trial was more than sufficient to support the member’s findings of guilty beyond a reasonable doubt. Thus we are convinced beyond a reasonable doubt that a disinterested observer would not harbor a significant doubt as to the fairness of the proceeding.

Easterly, slip op. at 14. Of course, mere sex outside of a marriage isn’t sufficient to sustain a conviction for adultery under Article 134 (it must also be service discrediting or prejudicial to good order and discipline; no small thing), and there are numerous affirmative defenses to assault consummated by a battery. There are, perhaps, tactically sound reasons to skip these arguments when the goal is to avoid a rape conviction, as Trial Defense Counsel succeeded in doing in this case. But ultimately, if your own defense counsel agrees that you’re guilty of the things you were convicted of, it’s awfully hard to say that your convictions were a product of an unfair trial.

That leaves only the sentence, and the possibility that the Commandant’s comments caused, or appear to have caused, Appellant to receive a harsher sentence than he would have without the comments (or with some remedial action by either judge). The CCA finds no error here because of the facts of the case, including significant strain on the deployed husband of the woman with whom Appellant had the first affair, and the physical injuries (bruising, etc.) sustained by the woman he battered. These are highly fact-specific findings and there’s plenty of room for opinion and argument either way. Maybe the sentence was harsher than it would have been without the Brief or with remedial measures, but the Government asserts that the facts justify the sentence and the CCA agrees. That’s part of the tough business of judging, and the CCA is likely to get a lot of deference from CAAF in this area.

What Easterly doesn’t address is the broader question of whether the Heritage Brief is UCI. In fact, as the first appellate opinion to address the Heritage Brief, Easterly is remarkably unenlightening. Besides the concessions made by Trial and Appellate Defense Counsel, the CCA merely “[a]ssum[es] without deciding that the Heritage Brief created the appearance of unlawful command influence.” Slip op. at 13. Undoubtedly, counsel for both sides would like the court to directly address the underlying question of the existence of UCI, but that question will have to wait. CAAF may grant review in this case, but it’s unlikely to do so just to answer the predicate question of whether there was UCI when the CCA assumed that there was UCI and decided the case on the question of harmlessness (of note, I recently discussed CAAF’s use of the same analytical approach in my argument preview of Hornback). Besides, the concessions during the trial make it unlikely that CAAF would do more than grant a rehearing on sentence.

In the comments to Phil’s post, there are some calls for the CCA or CAAF to take bold action (i.e., dismiss the case) as a punishment for the Heritage Brief. I think there are two flaws to this approach. First, it ignores the fact that the military courts, including CAAF, do not have general supervisory power over the military justice system (see Clinton v. Goldsmith, 526 U.S. 529, 536 (1999)). The courts must apply specific facts to specific cases, not assume the role of Congress or the President to supervise and correct the conduct of military leaders. Second, it assumes that an accused can never receive a fair trial in the post-Heritage Brief world. Such a belief requires nonsensically ignoring the facts of any particular case.

But it’s an equally flawed approach to say that the Heritage Brief requires no judicial response. The Brief undoubtedly changed the way Marines approach allegations of misconduct, and I think it safe to say that this was its purpose. To reflexively insist that the Commandant has a Title 10 responsibility to lead, and that the Heritage Brief was just a leadership message that has no impact on any particular case, ignores the practical reality that when the Commandant speaks, Marines listen. The wide range of remedial measures available to a military judge – such as additional voir dire, challenges, and instructions – provides the military justice system with the flexibility it needs to address the impact of the Brief.

The ultimate lessons of Easterly for trial litigators are to continue to raise the Heritage Brief and its consequences during the pre-trial process, to have frank discussions with members about the Brief and its continuing effects during voir dire (and perhaps to start questioning judges about it as well), to remain vigilant on the issue throughout the trial process, and to insist that the military judge make complete and coherent rulings whenever denying relief.

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