In United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed a child pornography conviction, and dismissed the charge with prejudice, after finding the uncured appearance of unlawful command influence in the trial counsel’s access and use of a military judge’s personnel record to seek the judge’s recusal, and in a supervising counsel’s ex parte communication with the judge’s supervisor to complain about the judge’s rulings. The case was our #4 Military Justice Story of 2013.
In a recent decision in United States v. Hutchinson, No. 38503 (A.F. Ct. Crim. App. Jun. 29, 2015) (link to slip op.), the AFCCA addresses a somewhat similar set of facts. Raising concerns about speedy trial issues, the trial counsel (prosecutor) repeatedly asked the military judge to hold a session of court to address any speedy trial concerns. The judge repeatedly denied the Government’s request to go on the record. Then:
the chief regional military judge (CRMJ) for the central region (who was also the military judge’s supervisor and rater) called the military judge. According to the testimony of the military judge, his supervisor informed him that he had received a call from the staff judge advocate (SJA) to the special court-martial convening authority for this case. The CRMJ indicated the SJA said the military judge was being recalcitrant, and the CRMJ asked the military judge for information on the situation. Having just received two electronic requests for an Article 39(a), UCMJ, session from trial counsel, the military judge understood exactly what his supervisor was referring to, and he then explained the chronology of the case to the CRMJ. He felt the need to do this because his judicial temperament had been questioned to his supervisor. . . .
As he considered the matter after the call, however, the military judge became annoyed and unhappy. His impression was that the SJA was unhappy with his decision to not hold an Article 39(a), UCMJ, session and considered it important enough to call the military judge’s supervisor to complain about his performance and professionalism in a pending matter in an ongoing court-martial and to make the government’s strong desires known, all in an apparent attempt to influence the proceedings. This action by the SJA caused the military judge to “think twice” about his actions in denying the government’s prior requests.
A few hours later, the military judge received a motion from the government, asking again that he convene an Article 39(a), UCMJ, session. This time, the military judge granted the government’s request. . . .
Slip op. at 5-6. The military judge did not recuse himself but a different judge was detailed to the case because the original judge was transferring. The appellant ultimately pleaded guilty to conspiracy, wrongful sale of military property, larceny, and disorderly conduct, in violation of Articles 81, 108, 121, and 134, and was sentenced to confinement for 38 months and reduction to E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 19 months. Then, on appeal, the appellant asserted the existence of an appearance of unlawful command influence in the ex parte communications with the judge.
Writing for a three judge panel of the AFCCA, Senior Judge Hecker makes three conclusions: (1) that the issue of UCI was not (and could not be) waived by the appellant’s guilty pleas and pretrial agreement; (2) that the appellant has made a colorable showing of the appearance of unlawful command influence; (3) that the appearance is harmless beyond a reasonable doubt.
In finding the issue not waived, Senior Judge Hecker writes:
The government now argues that the appellant has waived appellate review of this issue. When an appellant has intentionally relinquished or abandoned a known right at trial, “it is extinguished and may not be raised on appeal.” United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (citing United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008)). As this court pointed out in a recent decision, our superior court to date 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. See United States v. Dundon, ACM 38436, unpub. op at 5 n.5, 5–6 (A.F. Ct. Crim. App. 27 February 2015), review denied, ___ M.J. ___ No. 15-0511/AF (Daily Journal 2 June 2015). As we did in that case, we decline to find waiver here. Given our superior court’s precedent, we find the appellant could not waive the issue of unlawful command influence relative to the military judge originally assigned to his case. This result is especially appropriate where, as here, the military judge advised the appellant that it was possible his unlawful command influence motion could, in fact, be reviewed on appeal.
Slip op. at 9 (emphasis added). Notably, in the CCA’s decision in Dundon (discussed here), which was also authored by Senior Judge Hecker, the court suggested that the JAG certify that case to CAAF. Obviously, the JAG didn’t.
On the appearance of unlawful command influence, Senior Judge Hecker explains that:
We find the appellant met his initial burden of presenting some evidence of apparent unlawful command influence. . . .
As the replacement military judge found at trial, the SJA’s phone calls to the chief trial judge and the CRMJ were made in an effort to have them assist in changing a ruling made by the sitting military judge, and these calls played a part in the military judge’s decision to hold the Article 39(a), UCMJ, session. We recognize this ruling related to whether to schedule a court session, as opposed to a substantive ruling on a legal issue. That distinction, however, does not make the ruling subject to modification through the process employed here. When the government disagrees with the rulings of a trial judge, it may seek reconsideration, file motions with the trial judge, or seek this court’s involvement through government appeals under Article 62, UCMJ, 10 U.S.C. § 862, or through extraordinary writs.
As our superior court has expressly stated, the normative process in challenging a ruling does not include having “the Government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling.” Salyer, 72 M.J. at 426. Such a process can essentially create, or appear to create, a backchannel ex parte review of a military judge’s ruling through the use of supervisory judges as an informal quasi-appellate court system. To permit this “would foster the ‘intolerable strain of public perception’ on the military justice system which the proscription against unlawful command influence and this Court guard against.” Id. at 427. To that end, our superior court has condemned communications to a military judge’s judicial superiors regarding his performance, noting that “[p]art of the trade-off in a system in which judges lack tenure and professionally survive only by grace . . . is special vigilance to assure judicial independence.” United States v. Campos, 42 M.J. 253, 260 (C.A.A.F. 1995).
Slip op. at 13-14.
However, the appearance is harmless under the facts of this case:
Once he convened the Article 39(a), UCMJ, session, the military judge did not change any of his prior rulings and he continued to support defense counsel’s positions. Although the government facially achieved its overall goal of having an Article 39(a), UCMJ, session, the military judge’s continued refusal to engage in substantive discussions with the appellant at that session or engage in the other discussions requested by the government frustrated its plan to use this session to add to the record, leaving the appellant in the same position as before the session was convened. The government therefore received no advantage from its successful efforts to have an Article 39(a), UCMJ, session. Cf. Salyer, 72 M.J. at 428 (finding that government failed to meet its burden when an objective member of the public would have the impression that the government obtained an advantage).
Additionally, the appellant elected to plead guilty before another military judge, and he has raised no issue on appeal about the fairness or propriety of that proceeding or its results.
Slip op. at 14.