In United States v. Dundon, No. 38436 (A.F. Ct. Crim. App. Feb. 27, 2015) (link to slip op.), a three-judge panel of the AFCCA considers and rejects the appellant’s post-trial assertion of unlawful command influence related to “a sexual assault prevention all-call briefing that occurred the week prior to trial.” Slip op. at 2. But the panel considers the asserted error despite the fact that the appellant tried to waive the issue at trial:

In a discussion with the military judge, the appellant agreed with his counsel’s assessment that the facts brought out in his case so far did not raise the issue of unlawful command influence. After the military judge explained the potential relief the appellant could receive if such improper influence was found, the appellant agreed he wanted to “affirmatively waive any adjudicatory UCI [unlawful command influence] that may have been brought up by the facts in this case,” in order to retain the benefit of his pretrial agreement. He also signed a document which stated that the pretrial agreement precludes the military judge or any appellate court “from having the opportunity to determine if [he is] entitled to any relief” on his unlawful command influence issue and that he was agreeing to this provision in order to get the benefit of the pretrial agreement.

Slip op. at 4. The CCA notes that CAAF “has not applied waiver to issues of unlawful command influence arising during the adjudicative process, as it has for those arising during the accusatorial process.” Slip op. at 5.

Writing for the panel, Senior Judge Hecker adds this footnote:

Although our resolution of this case ultimately favors the Government, consideration of the case for certification by the Judge Advocate General under Article 67(a)(2) would appear to be particularly appropriate in view of (1) the potential inconsistency between the Court of Appeals’ precedents on waiver, adjudicative unlawful command influence, and member challenges; and (2) the importance of clear guidance to military courts and the service members who appear before them.

Slip op. at 2 n.1 (citations omitted).

10 Responses to “The AFCCA rules for the Government, and then suggests that the JAG certify the case to CAAF”

  1. Brian Bouffard says:

    I’m sure they’ll get right on that.

  2. Charlie Gittins says:

    Perhaps it is a “test.”

  3. RKincaid3 (RK3PO) says:

    Yeah, sure.  Since when does the AF TJAG certify anything that is potentially helpful to an accused?  Zach past posts have clearly established that such certifications are only done in the AF when the issue being appealed hurts the government.
    And, government MISCONDUCT (such as and especially UCI) should NEVER be waivable.  To allow its waiver to encourage such misconduct and then effectively immunize the governement’s unforgiveable behavior.  A waiver as a condition of a guilty plea in a system wherein the accused is already in a disadvantaged position is a travesty as a matter public policy.  Government misconduct is to be disincentivized (as suppression does for constitutional violations), not rewarded or encouraged by waiver or other governmental inaction.
    Remember, a right is only as good as the ability to vindicate a violation of that right.  Every servicemember has a right to a fair trial and due process of law.  And UCI is THE antithesis of a fair trial and denies due process.  Remove an accused’s ability to vindicate the right that has been violated–under the pressure of a conviction without a guilty plea no less–and Servicemembers will effectively have no right to a fair trial and due process.
    It really is that important and it really is that simple.
    And that is why it will go uncertified.  

  4. DCGoneGalt says:

    Wayne Campbell, do you think certification may will happen?

  5. Dew_Process says:

    I suspect that if TJAG doesn’t certify, that the Accused / Appellant will seek CAAF review and prominently display Judge Hecker’s footnote.
    I would also hope that he’d ask the CAAF to re-consider its holding in Talkington, as the opinion is fundamentally flawed.  Not all State SORA/SORNA statutes are the same, so the first problem is that there is no “one size fits all” answer to the question of whether it is a direct or collateral consequence.  But, if after conviction by a court-martial of a qualifying offense, one faces criminal sanctions for failing to register under SORA / SORNA statutes, that’s pretty direct in most of my client’s eyes.
    We instruct panel members on the “stigma” of a court-martial conviction as a federal conviction and the effects of a DD or BCD – equally as collateral under Talkington, and yet, where a statute precludes employment opportunities, e.g., school teachers, school custodians, etc., arguably precludes one from attending the church, temple, mosque or synagogue of one’s choice if children also attend, where one can live in a particular community based upon distance requirements, all of that has a damn direct impact on the client affected.
    Just a thought . . . .

  6. Phil Cave says:

    Also, some state courts are deciding that some aspects of their SOR are punitive.  They are doing this in the context of ex post facto challenges under their own state constitutions, not the U.S. constitution.  See e.g.,
    I have argued, of course not successfully that the residence requirements are a form of banishment, which was in earlier times considered a punishment and the person was banished from the jurisdiction.

  7. Tami (a/k/a Princess Leia) says:

    RCM 705 prohibits PTA terms that require an accused to give up his right to due process or his right to fully exercise his post-trial and appellate rights.  Seems to me that adjudicative UCI is a due process issue, and “agreeing” that the issue can’t be reviewed by an appellate court falls squarely within the prohibition.

  8. John O'Connor says:

    Someone needs to take an axe to RCM 705. 

  9. Fired AFJAG says:

    Right.  The USAF TJAG is going to certify something on behalf of an accused.  That would be an exercise in the pursuit of justice, which the USAF JAG Corps does not believe in as an institution.

  10. Zeke says:

    That would be an exercise in the pursuit of justice, which the USAF JAG Corps does not believe in as an institution.

    That’s too hyperbolic even for me…