Back in April, in this post, I discussed the NMCCA’s decision in United States v. Loiacono, No. 201200451 (N-M. Ct. Crim. App. Mar. 25, 2014), rev. denied, 73 M.J. 452 (C.A.A.F. Jul. 29, 2014), in which the CCA rejected the appellant’s claim of judicial bias arising from improper questioning of a witness by the judge that led to improper testimony from the witness (requiring what the CCA called a “strong curative instruction,” slip op. at 31).
Now, in United States v. Williams, No. 20130284 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), a three-judge panel of the Army CCA finds plain error in a military judge’s questions to a sentencing witness. The Government repeatedly tried to elicit testimony from the witness about the effect of the appellant’s offenses on the unit. But that testimony was focused on the administrative after-effects, with observations such as:
CPT JF: Okay. Well besides the soldiers being upset that he wasn’t receiving a punishment and they had, there was even threatening against him, especially when the barracks incidents happened; that they wanted to take into his [sic] own hands because they felt justice wasn’t being served to him fast enough. When it came to — our unit was extremely busy with a lot of missions at the time. When it came — I had to bring NCOs out to escort him around to make —-
Slip op. at 9-10. The problem with this testimony is that a service member’s invocation of the right to refuse administrative punishment and require that the Government conduct a court-martial, and any associated delay, is not a matter in aggravation. Neither is the fact that others the his unit contemplated vigilantism. The Defense repeatedly objected to the questions, and the judge sustained the objections. But then the judge questioned the witness:
MJ: [CPT JF], you talked about the impact on the unit about the other soldiers observing what they felt was the slow pace of justice and wanting to take matters into their own hands. What do you base that observation on?
CPT JF: Yes, sir. I mean, rumors and hearsay had gotten to me that they were threatening beating him down.
MJ: And how was that transmitted to you?
CPT JF: Through NCO channels, like, “Hey, sir. These soldiers want to beat him up.”
Slip op. at 10. The Defense did not object to the judge’s questions.
The CCA finds plain error, explaining:
The military judge’s question and the witness’s answer went beyond well-established limits on evidence in aggravation. See Rule for Courts-Martial 1001(b)(4). Such evidence about soldiers’ desire “to take matters into their hands” because of “the slow pace of justice” as negatively impacting good order and discipline in a unit is exactly the kind of administrative burden which courts-martial are prohibited from considering during sentencing. See Fisher, 67 M.J. 617. Thus, we find plain and obvious error.
Slip op. at 11. The court also notes “the fact that the military judge elicited the improper testimony about soldiers’ desire ‘to take matters into their hands’ because of ‘the slow pace of justice’ provides some evidence to demonstrate the judge considered the improper evidence in reaching appellant’s sentence.” Slip op. at 11 (emphases in original). As a result, the CCA reassesses the sentence.
The appellant was convicted pursuant to his pleas of guilty, by a general court-martial composed of a military judge alone, of “failure to go to his appointed place of duty, disobedience of a superior commissioned officer, disobedience of a noncommissioned officer (two specifications), false official statement, wrongful use of marijuana, larceny (three specifications), housebreaking (two specifications), and bigamy in violation of Articles 86, 90, 91, 107, 112a, 121, 130, and 134.” Slip op. at 1. He was also convicted contrary to his pleas of not guilty of two specifications of larceny in violation of Article 121. He was sentenced to confinement for 18 months and a bad-conduct discharge. A pretrial agreement limited the approved confinement to no more than 15 months, and that is what the convening authority approved.
The CCA affirms the sentence approved by the convening authority.
Notably, Senior Judge Lind dissents in part from the decision, writing:
I do not find the military judge’s question about the “slow pace of justice” constitutes error that was plain or obvious. The military judge referenced the “slow pace of justice” in only one question. There is no explicit evidence in the record that the judge elicited this fact as aggravation evidence. An equally plausible explanation for eliciting this fact is to consider it as mitigation evidence in favor of appellant due to the delay by the government in bringing the case to trial and the negative impact on appellant of dealing with soldiers who wanted to “beat him up” for something outside of his control.
Slip op. at 12. She also finds no prejudice to the appellant because she does not believe that “the military judge’s single question substantially influenced appellant’s adjudged sentence.” Slip op. at 12 (emphasis in original).