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.
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 The remaining charges and specifications were withdrawn and dismissed by the Government in accordance with the pretrial agreement.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.