The NMCCA has issued a published opinion in United States v. Howell today.

A Marine case has been returned for a new trial based on apparent UCI from the Heritage Brief and other events.  As the concurring judge points out, the opinion does not hold the Heritage Brief to be UCI per se.

At trial Appellant litigated a UCI motion initially in front of then Judge Palmer.  Zach reported LtCol Palmer was recently assigned as an RDC which has drawn some comment.  The NMCCA decision lays out a very detailed chronology of the events leading up to the motion, starting with the Heritage Brief, moving to the various White Letters, the media coverage, and then the “torturous” procedural timeline.   The opinion points out that the Heritage Brief at Parris Island, the location of trial, happened after an Article 39(a) session and shortly before trial.  (Note as you read various facts that can distinguish this case from the several cases on the Amos motion already decided.  Zach discussed his view of how NMCCA “dodge[d]” the issue in Easterly and Hutchins)

At trial appellant engaged in very detailed voir dire of the members.  And, like the court, “We turn to particular responses that convey the flavor of the voir dire responses from the panel. Two members were particularly frank in their responses.”  Further, the court focuses on several enlisted members.

Master Gunnery Sergeant (MGySgt) P, when asked about the CMC’s statement that 80 percent of sexual assault allegations are legitimate, responded, “I believe that . . . that’s his opinion that 80 percent are true. I don’t take it to mean though that the other twenty percent are made up.”  She also acknowledged that the CMC’s remarks may have “some bearing” in her decision-making as a panel member.

Master Sergeant (MSgt) H, when asked about the same remark from the CMC, responded, “Like I said, ma’am, I would think highly that he has (done) his homework and that he’s been advised correctly.”36 Later, in response to a similar question, MSgt H replied, “[L]ike I said, he has knowledge of those things. So if he said it happens, it happens.”

When asked what message the CMC conveyed in the Heritage Brief, First Sergeant (1stSgt) W summed it up as follows:

“Basically . . . that senior enlisted and senior officers, we’re not doing our jobs as far as keeping the Marines in line. He’s tired of the sexual assaults/sexual misconduct amongst officers and Staff NCOs, and he’s holding us accountable.”  This same member later engaged in the following exchange with the trial counsel:

Q. Do you feel . . . based on what the Commandant
said that you would be expected to find the accused
A: If the evidence was there, yes, sir.

Q: Okay, and what if the evidence wasn’t there?
A: Then I’d have to dig deeper.

The remarks are similar to a Marine Staff Sergeant response we had in Walton some years ago.  When asked if he could set aside the inaccurate information from his commander he replied “no, it’s a question of integrity.”  The point being his commander had more intergrity than the court.  Ultimately a panel was seated for Howell, and then NMCCA granted a stay of proceedings through an extraordinary writ petition.

One week later, LtCol Palmer gave his PME lecture that led to his leaving the bench.

Back to trial, Col Daugherty became the trial judge and allowed for reconsideration of all motions including the UCI.  He reversed LtCol Palmer’s ruling and found that the defense had raised sufficient evidence to shift the burden.  But he ultimately denied the motion.  Trial and conviction then proceeded with Col Riggs as judge.

The court first holds LtCol Palmer’s finding of no showing of a nexus between the Heritage Brief and the case to be error.  And, “His
concomitant failure to grant any remedies represents a critical missed opportunity to take the steps necessary to remove the
appearance of UCI from this trial.”  The defense raised the UCI again in front of LtCol Palmer, which he again denies,  “with the curiously inaccurate explanation that most of the challenges he granted the evening before had little or nothing to do with the Heritage Brief or related issues.”  Which the court then finds, “Upon our review, this obdurate refusal to acknowledge what was obvious – that the defense had met its low threshold burden – and his mischaracterization of the challenges and excusals only exacerbates the troublesome appearance of UCI.”

Those concerns are further exacerbated when LtCol Palmer gave a two-hour PME lecture to junior officers the following week in which he highlighted Congress’s mistrust of the Marine Corps legal system and desire for more convictions. These comments would be deemed injudicious at any time. Given the fact that LtCol Palmer was the presiding judge in a case in which he denied a defense motion alleging UCI over these issues, a decision over which this court issued a stay of proceedings, his comments only heightened the appearance of unlawful influence in these proceedings.

The court is pointed in noting several times that during the PME there was a pending case with a court ordered stay on that case.  The court then gets to Col Daugherty’s ruling on reconsideration – a finding removal of any taint, – with which the court “disagree[s].”  The court says,

The defense was then forced to use its peremptory against this member. We conclude that, although LtCol Palmer mentioned the liberal grant mandate, he failed to actually apply it. As for “the remedial actions taken,” upon which Col Daugherty in part relies, the record contains no evidence of those.

In sum, contrary to Col Daugherty’s conclusion in the middle of trial, we find that the appearance of UCI had actually
worsened with the voir dire, the less-than-liberal rulings on challenges, LtCol Palmer’s refusal to acknowledge that the
burden had shifted, and his subsequent remarks at the PME lecture. Col Daugherty’s failure to grant any remedies, having found apparent UCI, represents another critical missed opportunity to remove the taint of apparent UCI from this trial.

We are not convinced beyond a reasonable doubt on appeal that the Government has met its burden of demonstrating that the findings and sentence were not affected by the appearance of UCI. We specifically reject Col Daugherty’s conclusion that the apparent UCI had cured itself with voir dire, challenges, and the passage of time. As a result, an objective member of the public would be left with the appearance and the impression that LtCol Palmer’s flawed rulings, both on the UCI motion and on defense challenges, infected the verdict and sentence: the members whom LtCol Palmer impanelled as the appellant’s jury sat for the remainder of the trial, with no curative action or instruction by either of the two successive judges.

A couple of notes from Jim McFarlane‘Ward’s concurring opinion.

The majority does not hold or intimate that the Heritage Brief constitutes unlawful influence on any tribunal or that it
per se creates any appearance thereof. I agree. . . .

Like the majority, I find that the voir dire, while extensive, was largely ineffective in resolving any appearance
of influence on the panel from the Heritage Brief. Despite this issue being raised, the military judge avoided the subject
altogether during his own group voir dire and he gave no prophylactic instructions to the panel.  Moreover, even though he may have intimated at the onset that he would liberally grant challenges, he failed to do so.

And his further teaching point:

The appearance of unlawful influence on a venire requires heightened vigilance in the courtroom beyond that normallyafforded to implied bias. Although both tests rely on an objective viewpoint, apparent unlawful command influence, with its presumptive prejudice, requires a more stringent test since there already exists a jaundiced view in the eyes of the objective observer.

18 Responses to “UCI and new trial for an Amos motion”

  1. DCGoneGalt says:

    Thank you to  commenter “J” for the early tip! 
    Christmas comes! Gen Amos’ UCI Magical Mystery Tour bus has finally run out of gas.  Lt Col Palmer seems like a logical choice for the supervisory Defense position. 

  2. J says:

    I feel useful so rarely, this is a big moment for me.

  3. stackhouse says:

    This opinion is a great example of why it’s important to make a record, make a record, and make a record.

  4. No Man says:

    I think the concurring op. is Judge Ward, not Judge McFarlane.

  5. Charlie Gittins says:

    You know, if I make serial blunders in my job, I expect to get fired.  In the Marine Corps JA Division, there apparently is no limt to the number of f-ups one can make and not continue to move up the ranks.  I don’t think that is true across the USMC, but JAD’s history over the past couple of years sets a new threshold for promoting and advancing incompetence and/or lack of rigorous analysis.  I feel bad for the young JAs who are likely to view what is going on in the JA Division as appropriate or business as usual.  They are being trained to follow in the footsteps of those who have been rewarded for f-ing up.  Very sad. 

  6. Zachary D Spilman says:

    I’ll write more later, after I cool down from reading this:

    The majority does not hold or intimate that the Heritage Brief constitutes unlawful influence on any tribunal or that it per se creates any appearance thereof. I agree. Much of the Heritage Brief in my mind reflects lawful command influence. Reasonable minds can disagree as to attendant meanings from certain remarks. In many ways, the CMC’s remarks in regard to sexual assault reflect a broader, ongoing debate that extends well beyond our military.

    Slip op. at 23 (Ward, S.J. concurring) (emphasis added).

    There is no such thing.

  7. Lee Thweatt says:

    I am curious whether a member of the Joint Chiefs has ever been specifically named by a military appeals court, as General Amos was in this case, as the impetus behind a ruling on UCI?

  8. Sea Lawyer says:

    @Charlie Gittins:  I completely agree.  So how do we stop this unending flow of UCI?
    Dismissals provide an effective cure for the appellant, but what is the effective cure for the service?  Article 98 suggests one way to get at the problem, but does anyone recall a service member charged under Article 98 for offending Article 37?  Jefferson, in his distaste for the life tenure granted to Article III judges, once wrote “impeachment is not even a scarecrow.”  Put differently, that a federal judge knows he or she might get impeached for usurping power is not a sufficient policing mechanism because it is used so infrequently, if ever.  Anecdotally, it appears the same is true for the idle policing mechanism known as Article 98.  Marines like Judge Palmer, LtCol Mannle (of Salyer fame), and now the CMC, never get read the riot act despite published opinions from courts of law admonishing their conduct or, at minimum, finding their conduct offends Article 37.  So I ask again: has anyone heard of a service member who has been charged under Article 98 for offending Article 37–the mortal enemy of military justice?

  9. Matt says:

    Sea Lawyer:  When I researched this issue a couple years ago, I was unable to find a single case where somebody was charged with an Article 98 violation.  It may have been used in an Article 15, or there may have been a charge and no conviction, but I couldn’t find a single decision addressing it.  I agree that if it is never going to be used, it is a meaningless protection.

  10. Guy Womack says:

    At what point does CMC hold himself accountable to the extent he does his subordinates?  Apparently never!  For our Commandant, sides by his Uniformed and Civilian Legal Team to hold themselves above the rules is unprecedented and a tragedy for our Corps. From talking with several young JA’s, I believe they see the misdeeds of their superiors and will avoid following in their footsteps. I sure hope so. 

  11. J says:

    ZS: Is there truly not a way for a commander to talk about expected behavior? About the issue of sexual assault in the military?

  12. stewie says:

    So when should it be used then? Every single time UCI is found? Or in certain types of cases? Which type? I certainly agree there must be a line out there somewhere, or else the protection is meaningless, but what is the line?

  13. DCGoneGalt says:

    J and Stewie:  I agree there is a need for commanders to address these issues and that the line is hard to draw.  While I certainly have my own opinions on the SAPRO/Standdown/Heritage briefs (and it isn’t a positive one), the timing of this particular trial with respect to the Heritage brief and the rulings of Lt Col Palmer seem to be custom made for appellate smack-down. 
    IMHO, the material in the briefings actually causes more people to swing to the opposite conclusion that the briefings are intended to convey.  When you feed people information that they know is inaccurate (and that they know that you know is inaccurate) and all are forced to pretend it is accurate it causes an erosion of trust in the system that, in my experience with member feedback, makes the recipients of the information suspicious of everything that comes their way.  I would say that with the caveat that FGO members seem to be the most “toe the line” careerists looking to not make waves which is why I cannot fathom why Art 120 cases don’t have more requests for enlisted members.  If I am the defense you can give me five NCOs/SNCOs over a bunch of Majs and Lt Cols any day.
    For the life of me I have no idea why the briefings are so insane.  Bystander intervention, respectful workplaces, the “battle buddy” system, and responsible alcohol consumption seem to be much more effective than briefings that at times feel like they are North Korean political rallies.  [All hail 2%, any objective inquiry is victim-blaming, BELIEVE THE VICTIM, #1 objective is offender (wink, wink:  accused) elimination.]  I have sat through so many sexual assault briefings in the past couple of years I have lost count and have sat through no briefings on actual national defense or the mission and how it relates to war fighting (you know, the entire purpose of the military).

  14. Murtaugh says:

    Gen Amos: “My lawyers don’t want me to talk about this, but I’m going to anyway.”

  15. DCGoneGalt says:

    Well, since he was advised and didn’t care perhaps Gen Amos can explain to the victim why she will have to go through a new trial.

  16. Frank Rosenblatt says:

    Since Article 98 requires knowing and intentional failure to enforce or comply, the line should be drawn at actual UCI. But nearly all UCI these days is apparent UCI.

  17. k fischer says:

    Re: Murtaugh and Rosenblatt, 
    Article 98 requires a knowing an intentional failure to enforce or comply.  General Amos famously stated that he received legal advice not to talk about sexual assault, yet he did anyways.  So, has there been any panel members who were kicked off a panel because of their views based on the Heritage Brief?  
    If so, then there was actual UCI because (1) the CMC received legal advice to not make statements regarding sexual assault prosecutions; (2) he gleefully admitted that he was going anyways; and (3) Members could not sit on a panel because of his statements.   Whether or not an accused’s trial was prejudiced because the panel member was kicked off the panel is irrelevant.  
    Of course, nobody will do anything because these statements centers around the war on sexual assualt in the military.  Of course, you change the crime from sexual assault to the CMC saying that liars who make false allegations should be kicked out of the military because they have no integrity and we need to prosecute those who make false allegations because the demean those who have valid allegations, and the CMC would have been met with the ire and full force of the sexual grievance industry.

  18. Phil Cave says:

    But see, United States v. Duton, which I believes joins two others finding no UCI error.