In a published opinion in United States v. Matthews, 73 M.J. 935, No. 1382 (C.G. Ct. Crim. App. Oct. 20, 2014) (link to slip op.), a three-judge panel of the Coast Guard CCA finds that a convening authority was disqualified from taking post-trial action in the appellant’s case because the convening authority is a pilot who flew search and rescue sorties searching for the appellant after the appellant deserted. As a result, the CCA remands the case for a new post-trial action by a different convening authority. Chief Judge McClelland writes for the panel, while Judge Gill dissents.

The case involves the following facts:

Appellant, stationed at Coast Guard Air Station Barbers Point, deserted his unit, left his car on a cliff above a beach, and went camping in the woods. (Prosecution Ex. 1.) The Coast Guard launched a search for him by vessel and aircraft because it was thought that he might have gone into the water. (R. at 102-03.) Air Station Barbers Point flew eighteen sorties for sixty-four hours over three to four days, involving every pilot including the commanding officer, in the course of the search. (R. at 82.).

Slip op. at 2. The appellant ultimately pleaded guilty pursuant to a pretrial agreement to desertion and wrongful use of marijuana, in violation of Articles 85 and 112a. A special court-martial composed of a military judge alone sentenced him to confinement for twelve months, reduction to E-3, and a bad-conduct discharge. Pursuant to the pretrial agreement, the convening authority suspended confinement in excess of ten months. The pretrial agreement called for disapproval of confinement in excess of ten months.

During the post-trial process the appellant asserted that the convening authority was disqualified from taking post-trial action in the case on the basis that “as the commanding officer of Air Station Barbers Point and responsible for the search efforts carried out by the air station’s assets, [he] was so closely connected to this case that he had a disqualifying personal interest in the case.” Slip op. at 2. On review, the CCA agrees:

A convening authority is disqualified when he or she has a connection to a case of a personal rather than official nature. United States v. Reed, 2 M.J. 64, 68 (C.M.A. 1976). The test is “whether, under the particular facts and circumstances . . . a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation.” United States v. Jeter, 35 M.J. 442, 445 (C.M.A. 1992) (quoting United States v. Gordon, 1 USCMA 255, 260, 2 C.M.R. 161, 166 (1952)).

In this case, the Convening Authority himself flew sorties searching for Appellant. Although he did so in an official Coast Guard capacity, it was in his capacity as a pilot, entailing personal risks to himself and his flight crew. We see his pilot capacity as different from his capacity as Appellant’s commanding officer. We believe a reasonable person would impute to him a personal interest in this case. See Jeter and cases cited therein, 35 M.J. at 446. We conclude that he was disqualified from taking post-trial action as the Convening Authority.

Slip op. at 2-3.

But Judge Gill dissents.

The majority acknowledges that the Convening Authority’s was acting in an official capacity while participating in the SAR mission but concludes that his official participation as a pilot entailed such risk to himself and his crew that we should impute a personal interest, which disqualifies him from taking action on the case. I disagree.

The Convening Authority is an aviator. Aviators fly. Even the most accomplished air station commanding officers are required to achieve and maintain certain minimum flight hours and satisfactorily conduct prescribed training evolutions on a recurring basis in order to remain proficient and qualified.

Slip op. at 5. Judge Gill identifies some significant factors:

I might be more inclined to concur with the majority if, for example, the record revealed that the Convening Authority’s search flight(s) involved especially hazardous or challenging environmental conditions, resulted in the cancellation of long-planned personal leave, required him to miss a particularly significant personal or family occasion, or were in the nature of a law enforcement search vice humanitarian search and rescue. But it does not. I am reluctant to impute a disqualifying interest to the Convening Authority on the basis of such scant evidence.

Slip op. at 6. But ultimately Judge Gill see this issue as waived:

The Convening Authority’s participation in the search for Appellant was known at the time of trial and at the time of the post-trial Article 39(a) session. The issue was waived by his unconditional guilty plea and failure to raise it a timely manner. Jeter, 35 M.J. at 447 (“We are inclined to believe that generally a violation of Article 22(b) is waived if an accused and his counsel are well aware thereof and make no objection or protest at trial.”).

Slip op. at 6.

17 Responses to “The Coast Guard CCA disqualifies a convening authority”

  1. k fischer says:

    Has anyone, other than me, considered the premise that if an SJA is advising their GCMCA to convene a highly questionable sexual assault charge to court-martial because it would be unwise, based on all the pressure from Congress to refer sexual assaults to trial, for him or her to dismiss the charges that he or she does not feel should be referred, then the SJA is making the convening authority a Type 3 accuser under Article 1(9)?
    Because I think having to fly the plane you are trained to fly has a far less appearance of having an impact, then not getting your next star and having to retire, thereby missing out on a ton of retired pay at a higher rank. Anybody file a motion like this with regards to sexual assaults?

  2. NavyDC says:

    Two things I notice about this one:
    1) Does the SJA who drafted CA’s Action not grasp the difference between suspension and disapproval?  And if so, didn’t they read Part 2 of the PTA where it says “Confinement in excess of X months will be DISAPPROVED.”?
    2) I suspect that the Gov’t theory in sentencing had something to do with risks/costs associated with the search – why didn’t they see the Type 3 accuser issue well in advance?

  3. NavyDC says:

    k fischer: I haven’t seen that motion, but in support, I’d cite s. 1751 of the NDAA FY14:
    It is the sense of Congress that–

    (1) commanding officers in the Armed Forces are responsible for establishing a command climate in which sexual assault allegations are properly managed and fairly evaluated and in which a victim can report criminal activity, including sexual assault, without fear of retaliation, including ostracism and group pressure from other members of the command;

    (2) the failure of commanding officers to maintain such a command climate is an appropriate basis for relief from their command positions; and

    (3) senior officers should evaluate subordinate commanding officers on their performance in establishing a command climate as described in paragraph (1) during the regular periodic counseling and performance appraisal process prescribed by the Armed Force concerned for inclusion in the systems of records maintained and used for assignment and promotion selection boards.

  4. Brian lc says:

    The dissent was close, “aviator fly” but did nt go far enough.  Aviators love to fly. Either everyone flew hours they would’ve flown anyway, or they got to fly additional hours.  Just imagine if the Accused misconduct stranded the CA on the golf course for another 9 holes.

  5. Phil Cave says:

    At Concurring Opinions blog, Prof. Magliocca, asks:

    The Brown and Garner cases lead me to ask this question:  Suppose I am a prosecutor and I conclude that a police officer [caostguardsman] is guilty of a crime, but I also conclude that no jury will convict given the evidence.  What should I do?  The most straightforward thought is that I should not bring a charge.  It would be irresponsible to charge someone when you feel sure that you cannot win a conviction (I’m equally sure that prosecutors do this all the time and hope to get a plea, but leave that aside).
    On the other hand, can public opinion on these issues be changed without some trials of police officers?  In other words, could a prosecutor say something in private like, “I know that a jury probably will not convict, but we need to bring a charge to express the view of a minority of the community that this sort of conduct is intolerable.”  Is that an appropriate action?  Would that just be grandstanding?


  6. k fischer says:

    Navy DC,
    Thanks for the cite.  I will use it.  I think every Defense Counsel in a sexual assault case has a responsibility to question each convening authority to determine whether he or she is so concerned about their own career that they referred the charge, thereby making them a type 3, Article 1(9) accuser, particularly in any referred court martial where the 32 IO recommended that the charges not be referred to a court-martial.  I have a hunch that at some point, the GCMCA would have received advice on the impact failing to refer the charge might have on their career progression.
    The Gillibrand option is looking better and better every day……

  7. stewie says:

    Mr. Cave, I don’t think in your hypo it is “grandstanding.” I think indicting in Brown and Garner was the right thing to do, even if a jury is unlikely to convict. There needs to be some appearance of accountability for police.  Right now there is none.  I am skeptical of the absolute “no jury would convict.” I don’t think prosecutors think that way most of the time. I think they think a jury is unlikely to convict, or they think a jury shouldn’t convict. It is the latter that should never go forward IMO. The former becomes more about resource-management, a weighing of possibilities, and other considerations (like police accountability).

  8. DCGoneGalt says:

    Mr. Cave and Stewie:  My two cents is that if you believe you have the evidence then you take it to trial and do everything to ensure you get a fair jury pool.  Taking public or political pressure into account may be considere to be realism but it is a sellout to logic and truth because you are, in effect, creating a secondary category of cases that are evaluated under a different, and weaker, standard.  IMO, it is moral cowardice and ethical deriliction to go forward on weak facts to appease a public mob (Brown) or not go forward because you will get a pro-police jury (maybe Garner, although is is hard to tell without knowing what presentation strategy the prosecutor took with the grand jury or seeing all of the evidence presented) or potential jury nullification (Southern white Jim Crow juries).

  9. stewie says:

    I think it’s moral cowardice to:
    1. treat a police grand jury different from others by doing things you don’t ordinarily do (allow the accused to testify, extensively, without challenge or risk; not give the GJ the right law; not give the GJ specific guidance; etc).
    2. not recuse oneself as a prosecutor if you have too close a relationship with the police (which is often the case). Now perhaps this second one is more a case of being myopic than cowardly if you can’t see your own prejudice/bias…but it’s not that hard to intellectually understand.  Hard to properly evaluate if you have the evidence if your default position/bias is to kill the case or have a higher standard for police than citizens.
    The problem isn’t that police cases are evaluated under a “weaker” standard, it’s that they are evaluated under a standard heavily favoring police.  So, if we aren’t going to stop that, then yes maybe we need a “weaker” standard to counter-balance, although I’d prefer just treating police like everyone else. 
    Soldiers get a ton more scrutiny in their acts during war than police do in a simple stop for a guy selling “loose cigarettes.”
    Prosecutors go forward on “weak facts” sometimes. I don’t know what that even means.  I don’t think the standard is I have to be certain I’m going to get a conviction to go forward.  Most rape cases are, by their very nature, not based so much on “strong facts” but questions of credibility.
    At the end of the day, I’d feel more comfortable with your POV if there was any evidence that police officers were treated just like everyone else when the potentially commit a crime.  But from the numbers, and from where I’m sitting, and I think a lot of people are sitting, they aren’t remotely.

  10. DCGoneGalt says:

    Stewie:  Not to turn this into a Ferguson thread but  I agree the Ferguson grand jury was treated differently than the norm.  They were given all of the investigatory materials and access to all of the public statements of the witnesses.  The accused testified and they got to take his statement into account.  Perhaps you would have preferred the standard cherry-picking of evidence to guarantee an indictment?  And if you believe prosecutors are often pro-police then I agree with you.  For the most part I believe it is in the nature of their job, anyone who has worked outside of the military in a large criminal justice jurisdiction knows that civilization needs protection from many of those who live within, and it is the police and prosecutors who in large part provide that protection.  The standards for the police are different, and they should be.  They have to go where many people can simply choose not to go, they have to deal with a criminal underclass that many people can simply choose not to deal with.  Soldiers (and Marines, Seamen and Airmen) share that same voluntary burden and I agree that they are held to a higher standard of scrutiny.  I think in large part that is because the second-guessing chattering class that never has to deal with these real-world situations understands that crime is a threat to them in a way that foreign enemies are not.  I am glad the Ferguson prosecutor has personal knowledge of what the police have to put up with (his father was killed in the line of duty) because I don’t want an Ivory Tower-type making calls on these cases.  I do think police (and the military) should be treated under a separate standard, for the reasons below.
    I said it is moral cowardice to go forward to trial on weak facts to appease a public mob or due to a worry of jury nullification.  Mr. Cave, quoting Prof Magloicca of Concurring Opinions as to the Brown and Garner cases:

    I know that a jury probably will not convict, but we need to bring a charge to express the view of a minority of the community that this sort of conduct is intolerable.

    You then followed that by commenting on the Brown and Garner cases.  So I commented that an objective consideration of the evidence under the law should be the driving factor, not the view of the community.   Throwing a weak-fact pattern and what should a no-brainer acquittal (Brown) to a jury would only post-pone the seemingly fact-immune public mob.  I truly believe the Ferguson prosecutor decision was driven by a desire to not see witnesses like Piaget Crenshaw, Tiffany Marshall, and Dorian Johnson testify under oath in public and be cross-examined against the forensic evidence and their wildly contradictory media statements.  Like your allusion to rape cases being based in large part on credibility, many of the witnesses in the Brown case that provided statements that could have been used to support an indictment were shown by the forensics to be non-credible.  I wish prosecutors provided all of the evidence in every grand jury proceeding, and I wish they had to make public recommendations to the grand jury.  If someone desired an objective recommendation from the prosecutor in the Ferguson case, it certainly would not have increased the chances of an indictment.   
    I am not aware of a public release of all of the evidence that was given to the Garner jury but while the Garner case seemed to have a much better chance of indictment, the medical evidence indicated that there was no damage to the windpipe, which would have been caused by the “choke hold”.   Instead, it appears to have been caused by having approximately a dozen police officers and other assorted agents of the state swarm an obese and asthmatic man, who posed them no physical threat or threat of fleeing, and placed him in a head lock for selling cigarettes because you were called in by a local business owner.  He was non-violent, other than a swipe of his hands at the officer who originally tried to cuff him.  From the video I could not understand why they did not simply tell him that if he did not comply they would have Tasered him.  However, regardless of the criminal liability analysis the  law enforcement reaction to me seems insane.  But then again, I guess this is what happens when you try to make money without giving the state of New York their seemingly God-given right to take their cut. 
    In the end, I guess you won’t respect my opinion because I do not think police officers should be treated like everyone else.  In many ways I believe they are the domestic “rough men” at the ready to ensure we can sleep comfortably in our beds at night.  Like the military, they are by no means perfect and should be held accountable, but they do not have the liberty of avoiding the worst that humanity has to offer and therefore do require a different standard than the civilian population.

  11. stewie says:

    1. I want police to undergo the same process regular citizens go through, nothing more, nothing less. That didn’t happen in Ferguson and it doesn’t happen nation-wide.  So if you think the process regular citizens go to amounts to something wrong, fine, but then advocate that everyone get the treatment at grand juries that police do.
    2. No, the standards should not be different.  They have to do things others don’t true, but they are also given power others aren’t. They can legally take away someone’s freedom, or life.  You wish to imbue them with more power because their job is more dangerous (of course, police don’t usually show up in the top ten of the most dangerous jobs).  I find it ironic you talk about protection when we are talking about police killing unarmed civilians for SUSPECTED crimes, and minor crimes in many cases.  Forget the racial aspect even (although that’s there). 
    3. “second guessing chattering class.”  A decision is made that ends in the loss of a human life. Are you suggesting such a decision should not be “second-guessed?” Or that it should not be second-guessed by the media or the public? I get a strong sense of Colonel Jessup’s speech in some of your comments.  A speech I found well-given, as anything Nicholson does, but not particularly compelling if given by an actual person.  Now, the second guessing that happens should take into account the difficulties of making split second decisions, human inability to perfectly know everything about a situation, etc.  That’s the ONLY “different” standard police should get IMO.  But that’s already baked in for most citizens who are sitting on a GJ.  It doesn’t need extra prosecutor help.
    4. There were more witnesses who saw hands-up than not in Ferguson.  Only 2 witnesses saw charging and there are/were credibility issues with them as well including one of them writing a fairly racist statement on the internet earlier the day of the shooting.  The prosecutors initially gave the GJ a wrong, more favorable law on police shootings.  They cross examined pro-Brown witnesses, and direct examined pro-Wilson witnesses, and Wilson himself.  They did not simply lay out all the evidence as you suggest and let the GJ decide, they did what any skilled attorney with a goal in mind did, they used direct and cross examination to lead the GJ to the desired result, only they did it with no adversarial backstop.  So, what you are actually advocating for, is for the prosecutor to really make the call on indictment, and then use the GJ to make the results seem better.
    5. You clearly are not aware of all the forensic results in the Garner case because the ME clearly labels that part of the cause of death was pressure on the neck.  Regardless, this is another in a long list of examples where the police can do something that’s clearly a crime, be videotaped doing it, and suffer no consequences from GJs or Juries.
    6. No, I don’t respect your opinion on this, that’s true.  To quote Uncle Ben, with great power comes great responsibility.  We’ve figured that out in the military well enough, but apparently we haven’t figured it out in our police departments.  If PVT Snuffy is held accountable for his actions in a fire-fight, then Patrolman Jones can be held responsible for his actions in dealing with a fat guy trying to sell loose cigarettes.  I have a hard time seeing how anyone can argue that.  I don’t think Garner was the “worst we can offer.” I don’t think that guy at the gas station is the worst we can offer, or the 12 year old kid in Cleveland, or the black man with a toy gun in a store, or the guy shot in the back in Utah (black cop, white suspect showing it’s not just a racial problem)…Heck, I don’t even think Brown was “worst we can offer.”  I’d sleep just fine if all those aforementioned people were still alive today.  I’d sleep just fine if cops felt somewhat more restrained in their use of lethal weapons and lethal fighting because there were real consequences to getting it wrong.

  12. DCGoneGalt says:

    Stewie:  You can have the last word if you choose, I really don’t want to drag CAAFLOG into an extended Brown/Garner discussion.  If you read nothing else in this post, please check out the Prof Stuntz book recommendation at the end.  If you haven’t already read it, based on your comments on CAAFLOG I think you would love it.
    1.  I agree that disparate treatment occurred with the management of the grand jury in Ferguson.  However, I think it occurred for a reason.  The prosecutor likely knew he could choose which evidence to present and get an indictment but the case would then be a publicly embarrassing acquittal.  I am unsure if the State of Missouri allows for special prosecutors to directly issue indictments, that could have bypassed a grand jury and gone directly to trial (and acquittal).  In the end, providing the grand jury with all of the evidence (and a recommendation from the DA) is how I believe it should be done.  IMO, the lack of a recommendation was not a conspiracy to avoid an indictment, it was a cop-out.  The recommendation would have been that no indictment be issued so the DA tried to appease the mob, it didn’t work.
    2.  The Brown case was not about killing an unarmed civilian for suspected crimes.  The forensic evidence makes clear Brown had his hands on the officer’s gun and struck the officer, not to mention the return towards the officer and the strong-arm robbery that took moments prior.  The Brown and Garner cases are like comparing apples to oranges.  Even though Garner had a criminal record a mile-long, his crimes were mostly of the variety caused by the state criminalizing everything under the sun and he posed absolutely no threat to the officers . . .  or anyone else.
    3.  Second-guessing chattering classes are the fact-free media and academic elites that still push the “hands up, don’t shoot” meme that emerged in the immediate aftermath of the incident based on the eyewitness statements that Michael Brown was approached by a police officer who shot him in the back and then finished him off when he turned around with his hands up begging for his life.  Those original statements may have fed into their pre-conceived belief that the police are a racist & bloodthirsty group who terrorize communities across the USA but it did not match the facts of these cases (or I would argue the statistical facts, i.e. objective reality).  I grew up in a high-crime city and went to a school that at many times resembled a prison and if there is some Col Jessup in my attitudes it is because I know what that community and that school (and communities and schools just like them) would have become without police, a hellscape.
    4.  Comparing the number of witness statements as to a given point when you have forensics is a strawman.  Forensics show a scuffle inside the car with the gun going off and Brown turning back towards the officer and coming at him, if the witnesses differ from that . . . and they certainly did in their initial statements, then their credibility is damaged.  Their later statements “evolved” to fit some of the evidence that was leaked but that just further damaged their credibility.  If anything comes of this it will be that perhaps the police will start wearing body cameras.  That is a great thing, because it helps get to the truth.
    5.   While I believe I have made it clear that the force used on Garner was over-the-top, the lack of indictment was likely due in large part because the officer did not use the NYPD-banned chokehold.  The cause of death was not asphyxiation and there was no damage to the neck bones or windpipe, which is what a chokehold is designed to do.  Instead, the officer applied a move that is designed to cause unconsciousness by reducing blood flow to the brain.  Again, the lack of an indictment could have also stemmed in part from the fact that the man was a morbidly obese diabetic asthmatic but I tend to take the egg-shell skull risk factor into account on this one and that the officers have to deal with the victim as they find them.  Anyone could see Garner was large and that he was wheezing just from having someone on  top of him.  In the end, he was selling cigarettes and minding his own business so why the need for the fight?  Just threaten to taser him if he resists arrest.  That is why police officers have tasers, to avoid physical confrontations in situations that are not life-threatening.  To address your point of the police doing something that is clearly a crime, the police using force to enforce the law, however stupid the law, is not a crime.  If they use excessive force it is a crime.  In Garner, I would agree the force was excessive and that we could argue over negligence standards, but there is certainly a rational basis for a lack of indictment. I would also submit that many potential grand jurors (and jurors) share my Col Jessup-like mentality.
    6.  I respect your honesty, unlike many I will not tamper my opinions in order to try and keep them to what someone else would consider respectful.  While I respect your opinions, I do not agree with them.  I would concur that Garner is not the “worst that humanity has to offer”.  However, police officers and military do have to interact with the worst that humanity has to offer on a daily basis and they do not have the time to sit down and have a heart-to-heart with each potential threat.  In Garner, there did not appear to be any threat.  In Brown . . . I am glad you can sleep just fine if he was alive today but I am not certain the officer would be sleeping fine if Brown had managed to get the gun.  There are real and tragic consequences to getting it wrong, but that does not mean that police officers and military should be judged according to the same standards as some Clint Eastwood wannabe with a quick trigger finger.
    Based on your comments on CAAFLOG, if you haven’t already picked it up, I think you would enjoy the book “The Collapse of American Criminal Justice” by the late William Stuntz.  Professor Stuntz, formerly of Harvard Law, was a great writer, especially on the issues of criminal justice and race, and I would describe the book as a masterpiece.

  13. stewie says:

    1. An acquittal would have been less embarrassing then what happened.  An acquittal means the process did what it was supposed to do and people, including myself, would be much more comfortable, or even agree, with no guilt beyond reasonable doubt then the idea that there wasn’t even probable cause.  It should have been done like all other GJs are done.
    2. Brown was unarmed.  There is no testimony, even from Wilson that he ever actually got control of the gun. Wilson’s testimony suffers from the same bias you bemoan in eyewitness testimony and is filled with contradictions (chief initially says he doesn’t know about the robbery, but his GJ testimony he says he does, among others). He was most certainly unarmed when he was running away.  But this isn’t about one sole case, it’s about a long string of them.
    3. Again, forensics says nothing about hands up/down. The forensic say two things:  Brown was in close proximity to the gun, close enough to get blood on it.  Police didn’t bother to do a crime scene analysis to see if there were fingerprints on it.  Brown wasn’t shot in the back.  That’s pretty much it. That supports both Wilson’s version of events AND Brown’s friend and other eyewitnesses’ version of events.  There were only two witnesses that saw him “charge” Wilson. At least one of those witnesses has obvious credibility issues (not to mention the ridiculousness of someone running from a guy shooting at them, then turning and charging at the still shooting guy from a distance).  Your critiques of witnesses are heavily one-sided. I’ve read the witness testimony, at least one says he had his hands up AND says the cop probably had to shoot him.  Doesn’t sound like someone making stuff up on purpose in favor of Brown.
    4. I’m baffled by your apparent belief that if you use enough force to cutoff the blood to someone’s brain thus killing them, it’s not a crime simply because you didn’t use a police procedurally banned hold to use it.  Just baffled by that.
    5. Police don’t even interact with the “worst humanity has to offer” on a “daily” basis. The Wire isn’t reality.  It’s this us v. them, the community as the enemy false mentality that you and some police get caught up in.  Do you know that something like 5% of NYC police are responsible for 40% of the “resisting arrest” charges?  Does that suggest to you that the problem is that police are interacting with the worst on a daily basis, or that there is a small, but “productive” core of bad eggs?  Much like rape.  Most of us don’t do it, the ones that do it, do it repeatedly.

  14. J says:

    There is a societal view that the military doesn’t take sexual assault seriously, just see the Congressional hearings and the Invisible War movie. To combat that, let’s push all sexual assault allegations to trial, even where the 32 says there are no reasonable grounds to believe a crime occurred. We should do this “even if [the members are] unlikely to convict. There needs to be some appearance of accountability for [military members].”  

  15. stewie says:

    Your attempt to link the two is flawed IMO. The societal view of sex assault in the military is not the same as the view of use of force by police, and the system in the military has never been set up to favor accused of sexual assault, i.e. article 32s are run the same way for them as ever other accused, we don’t give the sexual assault accused an easier path, let them testify without cross, give the wrong law, or use the process consistently to ensure no recommendation to go forward.

  16. J says:

    You obviously never saw me try to kill a bad case at a 32 back in my TC days :-)

  17. J says:

    I understand what you’re saying, and I don’t disagree in some ways, it looks bad when the process changes based on the accused. But, at the same time, these are still attorneys who I think we believe have a duty of honesty to the tribunal, and other associated ethical obligations.