In United States v. Saunders, No. 2014-15 (A.F. Ct. Crim. App. Apr. 17, 2015) (link to slip op.), the AFCCA grants a Government appeal of a military judge’s ruling that dismissed various charges, including sexual assault charges, against an Air Force Master Sergeant accused of improprieties involving his subordinates. The military judge:

concluded [that] the [accused] had met his burden of raising “some evidence” of apparent unlawful command influence in how the case was brought to trial. He found this burden was met by the following facts which, in his view, constituted “some evidence” of unlawful command influence:

(1) The [accused’s] commander held a meeting before trial where he stated that anyone who violated the UCMJ would be removed from the duty section, and then the [accused] was removed from the duty section; and

(2) The accused testified about statements made by the commander to the effect of, “How would I look to leadership if I did not push this issue?”

After shifting the burden to the government, the military judge stated in both rulings that he was “not convinced beyond a reasonable doubt that the comments upon which [he] based [his] determination (1) are not true, (2) do not constitute unlawful command influence, or (3) will not affect the proceedings.” He also stated:

In consideration of all the evidence considered on the matter, the inherent probability or improbability of the testimony, whether the testimony is supported or contradicted by other evidence in the case, and the credibility of the witnesses, this Court is not convinced beyond a reasonable doubt that the preferral of charges in this case was not tainted by the danger of Unlawful Command Influence.

The military judge did not expressly elaborate on how these facts constituted apparent unlawful command influence relative to the case.

Slip op. at 10. Notably, the CCA notes that the military judge “concluded the commander had expressed his determination of the appellee’s guilt through his statement at the duty section and the subsequent removal of the appellee.” Slip op. at 11. As a remedy, the military judge dismissed the charges with prejudice.

The CCA reverses, finding that the military judge abused his discretion by dismissing the charges with prejudice, “even if the facts found by the military judge rise to the level of apparent command influence.” Slip op. at 12. The court concludes that “because the military judge did not fully discuss the alternative remedies and it is not clear to us that those alternatives would have been insufficient to restore public confidence in the case, we find he abused his discretion by choosing the ‘last resort’ option of dismissal with prejudice.” Slip op. at 13 (citation omitted).

6 Responses to “The AFCCA grants a Government appeal of a dismissal based on the appearance of unlawful command influence”

  1. k fischer says:

    This is an interesting opinion to me.  How can the military judge not find this statement was not actual UCI:
     
    I want them to hear directly from their commander in chief that I’ve got their backs . . . . [W]e’re not going to tolerate this stuff and there will be accountability . . . . If we find somebody’s engaging in this, they’ve got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period. It’s not acceptable.
     
    It seems that this statement evidences the most senior General Court-Martial Convening Authority’s inflexible disposition towards the sentencing of individuals convicted of sexual assaults and his attitude towards leaders who fail to take these steps to hold people accountable by giving them dishonorable discharges.  If that isn’t UCI, then I don’t know what is.
     
    So the MJ finds that there is no actual UCI in that statement, yet he finds apparent UCI from the squadron commander’s statement requiring people accused of misconduct to be “removed from the shop” where the Accused is removed from the shop and takes the drastic remedy of dismissal with prejudice.
     
    It seems that the President’s statements, which he has not personally walked back as of the present date, is far more egregious based on the specificity of the punishment and his most senior position in the military.  I bet if judges dismissed with prejudice cases where the IO recommended dismissal, yet they still went to a GCM, then the POTUS and future POTUS would probably refrain from committing UCI like this.  And, that measure wouldn’t be so drastic because alleged vics still could seek justice in civilian jurisdictions, which everybody knows does such a better job at it than the military. 
     

  2. Charlie Gittins says:

    So the case gets remanded to the military judge.  If I am the military judge who made the original finding, I make it bullet proof.  I weigh all of the options short of dismissal, weigh them on the record, explain why they are in my view inadequate and then reaffirm the ruling.  I agree witrh KF.  Such a statement is actual UCI, not apparent.  I clarify that for the record  on remand — that I am ruling on actual UCI and apparent UCI and because I find actual UCI in addition to apparent UCI, the Government’s case gets the death sentence – dismissal with prejudice. 

  3. k fischer says:

    Charlie,
     
    I know of only one MJ with the stones to go against POTUS. 
     
    And, no Burt Macklin, you sob, it’s not you, unless your real initials are JP. 

  4. RKincaid3 (RK3PO) says:

    UCI–real or perceived; actual or apparent; political or military–disappears as a major problem when we go to an independent prosecution branch that handles crimes while leaving disciplinary matters to commanders.  A commander’s only role in a prosecution should be RECOMMENDATION as to disposition.  Nothing more, nothing less.We have created 90% of the problems in the UCMJ and until we are willing to fix them instead of paying homage to relics of the past and realize that “commander authority” off the battlefiled is not sacrosanct OFF the battlefield and in the states, well, JAGs will continue to suffer from self-inflicted injuries to both our credibility and primary statutory mission: military JUSTICE.   And a justice system is NOT defined by the particular results achieved, but by the process used to achieve any result at all.But that fact is NOT recognized by the powers-that-be and so we are left with the mess and just keeps getting messier with each new political cause du jour and the resulting UCI–both political and military in a system where the military exists and serves at the pleasure of the (political) civilians.

  5. RKincaid3 (RK3PO) says:

    You know, it seems to me that those who continue to advocate that a commander’s “disicplinary” authority should continue to include the imposition of “justice” (with Lady Justice’s blindfold lifted and looking to the subjective satisfaction of the outcome over the objective fairness of the process) via their retaining prosecution authority should be advocating that what greater service to discipline and justice exists than in yet another example from the past:  bring back decimation.
     
    How better to instill and maintain discipline than through the fear of arbitrarily imposed punishment via a groupthink mentality? 
     
    Pshaaa….due process.  What is that anyway?

  6. k fischer says:

    3PO,
     
    You think Judge Advocates will be less susceptible to political influence?  They will succumb to pressure just the same.  The process of how a case gets to a court martial panel won’t change.  What will change is the perception at trial that the CG sent this dirtbag to us for a conviction to the dirtbag spineless JAGs sent this poor innocent guy to trial to CYA.  Sometimes it takes a while but when a Command team hears “Congress is putting pressure on us to try these cases” to justify referral after the IO recommends dismissal, then sometimes there is a revolt.  And where normally SJAs like Commanders on the panels, they actually listen to the advice they get from their TCs and will not appreciate some of the things they hear.