Happy 2015 to all our CAAFlog readers out there! Like our number five story, the number four story on our list is also related to stories that made the top ten in previous years. In 2012, the “Heritage Brief” was part of the number one story and a PME for summer intern law students by a military judge at MCRD Parris Island was part of the number eight story. This year we saw the epilogues to those stories.
The content and events related to the Commandant of the Marine Corps’s Heritage Brief are well known to readers of this blog, so I won’t re-hash all of it. However, this year we saw decisions from the appellate courts in cases that played an important early role in the litigation of the issue. In late January of this year, the NMCCA held in United States v. Easterly (discussed here and here) that a military judge erred when he failed to find that the defense had met the low threshold for a showing of UCI. However, the NMCCA went on to hold that, assuming without deciding the facts presented by the defense constituted actual or apparent UCI, there was no evidence that UCI actually affected the court-martial. Therefore, the court affirmed the findings and sentence. CAAF subsequently declined further review in May.
Next up was the case of United States v. Jiles. Jiles was notable early on in the Heritage Brief UCI litigation, because it was the case in which the then-Chief Judge of the Navy-Marine Corps Trial Judiciary, Col Daniel J. Dougherty, USMC, ordered the Commandant of the Marine Corps to respond to interrogatories about the Heritage brief. Jiles ultimately ended up pleading guilty pursuant to a pre-trial agreement, and the NMCCA found no evidence that UCI, if it existed, played a part in his court-martial.
This brings us to the case of United States v. Howell (discussed here), which forms a bit of intersection between the Heritage Brief cases and the PME by the military judge at MCRD Parris Island. In Howell, the NMCCA found that the military judge, who gave the PME to the “summer-funners” in which a number of questionable remarks were made, erred when he denied a defense UCI motion as well as when he denied defense challenges to certain panel members at trial, again based on UCI.
The NMCCA noted that the PME, which was given while this case was under a court-ordered stay due to a pending motion on UCI, specifically “highlighted Congress’s mistrust of the Marine Corps legal system and desire for more convictions.” Following the notorious PME and this judge’s departure from the bench, Col Dougherty took over mid-trial and allowed reconsideration of all the previous rulings in the case related to UCI. He found that the defense had shifted the burden to the government, but ultimately found that UCI had not affected the proceedings thus far and the previous military judge’s use of the liberal grant mandate had cured any taint of UCI. The NMCCA disagreed and found that because there no action taken to address the erroneous denial of defense challenges to panel members, the taint of apparent UCI had not been removed. The NMCCA vacated the findings and sentence and ordered a new trial. However, the NMCCA still did not go so far as to hold that the Heritage Brief constituted actual UCI.
This brings us full circle to the case of United States v. Kish, where the ill-fated PME itself was the basis for an appellate challenge. In Kish (discussed here), the NMCCA found that the military judge’s conduct during trial, including interjecting himself into the examination of witnesses, combined with his post-trial PME to law student interns created an appearance of bias. However, the NMCCA stopped short of saying that the military judge was actually biased against the accused. Rather, the court found that his comments reflected his view of the attitude needed to succeed as a trial counsel and not his own personal views of the accused or the process. I voiced my own disappointment in this post that the NMCCA did not take the opportunity to condemn this viewpoint of what makes a “successful” trial counsel.
It seems unlikely at this point that an appellate court will find that the Heritage Brief constituted unlawful command influence, and with a new Commandant in charge, that issue becomes more attenuated every day for cases that are still pending trial. For cases that are still in the pipeline for review, the NMCCA will almost certainly continue to use the approach of evaluating whether there was any impact on the proceedings from apparent UCI. While this approach is consistent with the case law, it unfortunately does little to deter future incidents like the Heritage Brief.
The NMCCA is also sifting through the remaining cases affected by the Parris Island PME. Again, the court is taking a case by case approach and in some cases denies relief where the facts do not indicate there was an appearance of bias. In other cases though, the court has granted relief where there is a reasonable argument the PME created an appearance of bias (see here and very recently here). Here’s to hoping that by this time next year both of these stories are no longer in our top ten and have become part of the annals of military justice cautionary tales.