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.