Last month, in United States v. Easterly, No. 201300067 (N-M.Ct.Crim.App. Jan 31, 2014) (link to slip op.) (discussed in this post), the NMCCA considered the issue of whether the Heritage Brief – a blunt message from the Commandant of the Marine Corps about misconduct and its effect on the Marine Corps – constituted unlawful command influence (UCI) of courts-martial.

In Easterly, the NMCCA assumed without deciding that the brief was sufficient to raise the issue of UCI, and it assumed without deciding that the brief created the appearance of UCI. But the court was convinced beyond a reasonable doubt that UCI did not affect the findings or the sentence, in large part because of concessions the defense made during the trial and the nature of the misconduct encompassed by those concessions.

The NMCCA returns to the issue with United States v. Jiles, No. 201200062 (N-M.Ct.Crim.App. Mar. 6, 2014) (link to slip op.). The Jiles case is notable because at the trial stage, when the defense asserted that the Heritage Brief constituted UCI, the military judge took unprecedented action:

In order to discern the Commandant’s intent behind some statements he made during the Heritage Brief, the military judge ordered that interrogatories be prepared and served on the Commandant.

Jiles, slip op. at 3.

Update: You can read a complete copy of the interrogatories (provided in response to a FOIA request) here.

Because of this extraordinary record, Jiles presents a perfect vehicle for the appellate court to analyze the Heritage Brief, determine the propriety of its contents, consider its effects on the service, and give guidance to the field (including the many defense counsel who continue to litigate the Heritage Brief as an issue of UCI). Except for this fact:

On 9 October 2012, consistent with the terms of the pretrial agreement, the appellant entered guilty pleas to four specifications for failing to obey a lawful general order (sexual harassment) and five specifications of assault consummated by a battery. The remaining charges and specifications were withdrawn and dismissed by the Government in accordance with the pretrial agreement.

Slip op. at 5. As it was in Easterly, where the defense admitted the appellant’s guilt at trial, it’s awfully hard in Jiles to say that the convictions were the product of an unfair trial when the appellant pleaded guilty to the things he was convicted of doing.

2 Responses to “The NMCCA still avoids the tough question about the “Heritage Brief””

  1. Lee Thweatt says:

    General Amos wrote, under oath, in response to Interrogatory No. 4.b.: “The question, as written, seems to imply that my desires are inconsistent with the law.  To the congrary, my decisions and actions are, and always have been, founded on and consistent with the law.”  
    There is a man by the name of LtGen Thomas Waldhauser who signed an affidavit directly contradicting this statement.  In any case, firing a convening authority to ensure desired outcomes in the sniper urination cases is not an action “consistent with the law.”  Dismissing all criminal charges against Captain James Clement, USMC, then proceeding with a Board of Inquiry where the advising legal officer was named by the nation’s highest military court as someone who had committed unlawful command influence is not an action “consistent with the law.”  Misleading a national radio audience on NPR that no Marines were “crushed” or kicked out of the Marine Corps in the wake of the sniper urination cases is not actions that are “consistent with the law”–unless the law affords an embrace of deception instead of truth.  Sitting idle while the one Marine Corps lawyer with the guts to report this misconduct is removed from his job duties, savaged and smeared in the media by the top civilian counsel to the Commandant is not an action “consistent with the law.”  Trying to censor an independent newspaper for its reporting of this misconduct is not an action “consistent with the law.”  Abusing the classified information system at the expense of due process for the Marines charged with UCMJ violations arising out of the sniper urination cases is not an action “consistent with the law.”  These actions and inactions are consistent, rather, with self-preservation and careerism that disregards fundamental notions of fairness and due process at the expense of the Marines he is charged to lead.  This is your Commandant, Marines.      

  2. Confused says:

    At some point Congress will have to start answering the mail on this and similar issues. Talking about the troops is great, letting military commanders ‘handle their business’ is great – but commanders are not handling their business. The best thing for the American warfighter is good leadership. Time for Congress to act.