The AFCCA grants a Government appeal of a dismissal based on the appearance of unlawful command influence
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).