Reversing a conviction for urinating on deceased insurgents (on video), the NMCCA applies a new standard for the appearance of unlawful command influence
In January 2012 a video surfaced showing four Marines urinating on the bodies of deceased insurgent fighters in Afghanistan. The following year the investigation and military prosecutions arising from that video were our #6 Military Justice Story of 2013.
When the video appeared, then-Commandant of the Marine Corps, General James Amos, withheld disposition authority over cases associated with the video, exercising a power provided in Rule for Courts-Martial (R.C.M.) 306. Amos assigned that authority to then-Lieutenant General (now General) Thomas Waldhauser, appointing him as the consolidated disposition authority (CDA) for the cases.
But Walshauser was replaced as CDA by Lieutenant General Richard Mills (since retired) in February 2012 after – according to Waldhauser – General Amos told Waldhauser that he wanted the Marines involved in the video “crushed” and kicked out of the Corps (CNN report). General Amos eventually publicly denied making that statement.
The month after replacing Waldhauser with Mills as CDA, General Amos issued White Letter 1-12, referencing “a number of recent, widely-publicized incidents [that] have brought discredit on the Marine Corps and reverberated at the strategic level.” Amos then began a tour of Marine Corps installations, giving a presentation that became known as the Heritage Brief. I discussed the Heritage Brief in depth in this post.
Ultimately, a handful of Marines were disciplined in connection with the urination video. Some accepted non-judicial punishment. Others pleaded guilty at special courts-martial with pretrial agreements.
One of the Marines who pleaded guilty at a special court-martial was Staff Sergeant (E-6) Chamblin. On Dec. 19, 2012, Chamblin pleaded guilty to willful dereliction of duty, two orders violations, and wrongfully urinating on deceased enemy combatants. The approved sentence was confinement for 30 days (suspended), forfeiture of $500 pay per month for one month (additional months suspended), and reduction to E-5. Chamblin subsequently left active duty, wrote a book about his experiences, and foiled an alleged attempted murder.
Three days ago a three-judge panel of the Navy-Marine Corps CCA reversed Chamblin’s convictions and dismissed the charges with prejudice (meaning Chamblin cannot be re-tried) based on the appearance of unlawful command influence stemming from the actions of General Amos and his legal advisers. United States v. Chamblin, No. 201500388 (N.M. Ct. Crim. App. Nov. 8, 2017) (link to slip op.).
Writing for the unanimous panel and applying reasoning from last term’s decision in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page), Judge Fulton concludes:
the burden is on the government to show, beyond a reasonable doubt, that the UCI did not place an intolerable strain upon the public’s perception of the military justice system and that an objective disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding. We think that such an observer would share the SJA’s sense that the CMC and lawyers who reported to him “severely and systematically interfered” with this case and would harbor significant doubt about the fairness of the proceeding.
Slip op. at 16. But unlike in Boyce – where a slim majority of CAAF found that reversal with prejudice “would result in an improper windfall” in the absence of individualized prejudice, 76 M.J. at 253 n.10 (and the minority wouldn’t have reversed at all) – the NMCCA finds that:
public confidence in military justice requires dismissal with prejudice in this case. Nearly six years have passed since LtGen Waldhauser was named the CDA. Like the appellant in Salyer, this appellant had a right to a timely trial free from UCI. Col Gruter, who would have recommended that this case be disposed of nonjudicially had evidence not been withheld, has recused himself, and cannot participate further. We find lesser remedies inadequate to the harm. Dismissal of the charges and specifications with prejudice is necessary in this case to ‘“foster[ ] public confidence in the . . . fairness of our system of justice.”’
Slip op. at 17 (emphasis added) (marks in original).
It’s a remarkable conclusion not just because of the result, but because of the analysis that gets the court there.
In Boyce, Judge Ohlson wrote for a three-judge majority that included then-Chief Judge Erdmann (whose appointment has since expired) and drew a sharp distinction between “actual unlawful command influence and the appearance of unlawful command influence.” 76 M.J. at 247 (emphases in original). His majority opinion explained that:
[U]nlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence. Rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.
76 M.J. at 248-249 (emphasis added). (Now-Chief) Judge Stucky and Judge Ryan disagreed with this analysis, with Judge Stucky writing that it relies on a test that “makes little sense,” 76 M.J. at 253-254, and Judge Ryan writing that “a correctible legal error of apparent unlawful command influence . . . must be based upon an objective observation of the facts and circumstances of an individual case, and a finding of substantial prejudice to the rights of the accused,” 76 M.J. at 256 (marks omitted).
In Chamblin, Judge Fulton’s decision turns on the Boyce standard:
A determination that the appellant was not personally prejudiced, or that the prejudice caused by the UCI was later cured, is a significant factor to which we must give considerable weight when deciding whether the UCI placed an “intolerable strain” on the public’s perception of the military justice system. But such a determination is not dispositive. Rather, we will consider the totality of the evidence in determining whether there is the appearance of UCI.
Slip op. at 12 (citing and paraphrasing Boyce, 76 M.J. at 248 n.5).
The opinion then recounts a number of facts that “were not developed in the record of trial. Rather, they are taken from matters we have attached to the record on the appellant’s motion.” Slip op. at 12. Many of these facts seem to be Marine Corps Judge Advocate community palace intrigue involving the staff judge advocate and deputy staff judge advocate advising LtGen Mills’ (the replacement CDA), and senior attorney advisers to the Commandant. But Judge Fulton finds evidence of UCI in three facts:
LtGen Waldhauser’s affidavit states that the CMC told him that he wanted the Marines involved in the desecration cases “crushed,” and asked why LtGen Waldhauser would not send all the cases to general court-martial. This is clearly some evidence of UCI.
Slip op. at 13. Later the opinion characterizes this as “an unusually flagrant example of UCI.” Slip op. at 14
MajGen Ary’s [the SJA to the CMC] attempt to replace Col Gruter [the SJA to Mills] with someone who could talk “inside the Beltway” after Col Gruter protested the irregular classification of evidence constitutes some evidence of UCI.
Slip op. at 13. Later the opinion adds that “ultimately Col Gruter did recuse himself.” Slip op. at 15. But “Col Gruter’s recusal came after the appellant’s court-martial.” Id. (emphasis added).
Gen Amos’s Heritage Brief constituted some evidence of UCI. . .
Slip op. at 13. Later the opinion adds that “A member of the public’s confidence in the fairness of the proceedings would be eroded by the fact that the CMC made an example of the appellant’s conduct in a brief intended for distribution to all officers and senior enlisted Marines.” Slip op. at 15.
These three facts are a thin string on which to hang the remedy of dismissal with prejudice, and there’s a strong argument that none of them raise even the appearance of UCI.
The first fact – Waldhauser’s claim that Amos told him he wanted the Marines crushed – is characterized as unusually flagrant UCI, but that characterization ignores the circumstances. In an ordinary case involving an ordinary convening authority (like in Boyce), “a superior commander may not limit the discretion of a subordinate commander to act.” R.C.M. 306(a). But Chamblin (and the other urination video cases) is not an ordinary case. Rather, Chamblin is a case where the Commandant withheld disposition authority; an act specifically authorized by R.C.M. 306(a):
A superior commander may withhold the authority to dispose of offenses in individual cases, types of cases, or generally. A superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld.
(emphasis added). Now it’s true that the Commandant delegated the withheld authority to the CDA (first Waldhauser, then Mills), but it doesn’t necessarily follow that such delegation must be unlimited. Furthermore, R.C.M. 401(c) allows any convening authority’s disposition power to be limited, and R.C.M. 601(f) allows any superior convening authority to take control of a case. The true authority of the CDA in Chamblin, and the public’s perception of the case, must be measured at the intersection of these three rules. The NMCCA, however, glosses over this and treats the CDA as an ordinary convening authority with unlimited discretion.
The second fact – the effort to replace the CDA’s staff judge advocate – is a puzzling basis to find unlawful influence. This was not (and seemingly was never going to be) a general court-martial, where Article 34(a)(2) gives the SJA a veto power and the identity of the SJA might affect the use of that power. Furthermore, the opinion quotes the SJA as saying that he informed the CDA of the effort to replace him and the CDA “was unhappy with this turn of events,” supported the SJA, and likely prevented the SJA’s replacement. Slip op. at 5 (quoting SJA’s affidavit). So this really amounts to little more than a difference of opinion between military lawyers advising commanders whose authorities are inherently linked (because the lawyers trying to replace the CDA’s SJA were advising the person who appointed the CDA in the first place). And in the end, the CDA kept the lawyer he wanted.
As for the related claim of improper classification of evidence that seems to be the basis for the effort to replace the CDA’s SJA, that’s no evidence of unlawful influence because classification doesn’t necessarily deny the defense access to the evidence (see Mil. R. Evid. 505) and, in any case, the Information Security Oversight Office rejected the claim, and the DoD Inspector General declined to investigate. The CCA’s opinion does observe that “the government concedes that ‘standard procedures were not followed in coming to this classification decision,'” slip op. at 5 (quoting Gov’t Div. brief), but that’s a far cry from saying the evidence should not have been classified.
The third fact – that Gen Amos’s Heritage Brief constituted some evidence of UCI – is worth considering in its entirety:
We have previously found that Gen Amos’s Heritage Brief constituted some evidence of UCI, even when an appellant’s offense was not depicted in the brief itself. In this case, the brief contained at least one picture of the appellant urinating on a dead insurgent—an offense that was the subject of a pending court-martial—and asked, “What Does America Think of Her Marines Today?” We find that this brief also meets the relatively low burden of production for UCI.
Slip op. at 13. Later Judge Fulton adds:
A member of the public’s confidence in the fairness of the proceedings would be eroded by the fact that the CMC made an example of the appellant’s conduct in a brief intended for distribution to all officers and senior enlisted Marines. A member of the public would find that displaying a picture of the appellant committing an offense while the court-martial for that offense was pending—and particularly in light of the CMC’s earlier conduct in this case—evinces a disregard for the independence of those involved in the judicial process.
Slip op.a t 15-16. The problem with these conclusions is that Chamblin unconditionally pleaded guilty.
“A counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.” United States v. Ballan, 71 M.J. 28, 35 (C.A.A.F. 2012) (quoting Menna v. New York, 423 U.S. 61, 62 n.2 (1975)) (marks omitted). A plea of guilty at a court-martial provides additional protections not found in the civil courts. See Ballan, 71 M.J. at 35.
Accordingly, whatever the impact of the Heritage Brief, it is untethered from the factual question of Chamblin’s guilt.
Yet the NMCCA finds that General Amos’s reference to the incident that formed the basis of Chamblin’s plea is some evidence of damage to the public’s perception of the fairness of the military justice system as a whole (the Boyce standard for the appearance of UCI). Carried to its logical conclusion, that finding means that no commander superior to the convening authority can ever express concern about the conduct underlying an alleged offense.
That’s an absurd result.
The opinion also includes a finding that:
Marine Corps headquarters-level attorneys withheld evidence that the CMC committed UCI from the appellant, the trial counsel, the CDA, and the CDA’s SJA.
Slip op. at 14. But it’s circular reasoning to say that withholding evidence of UCI is evidence of the existence of UCI.
The CCA’s ultimate conclusion is that:
[an objective disinterested observer, fully informed of all the facts and circumstances] would share the SJA’s sense that the CMC and lawyers who reported to him “severely and systematically interfered” with this case and would harbor significant doubt about the fairness of the proceeding.
Slip op. at 16. I think this conclusion suffers from two serious flaws.
First, it assumes that the CDA has the unlimited discretion of an ordinary convening authority. As discussed above, the fact that General Amos withheld authority under R.C.M. 306(a) prior to any of the interference seems to me to matter a great deal.
Second, it doesn’t plainly explain what was unfair. In Boyce, for example, the majority found that an observer would question whether the convening authority was “inhibited . . . from exercising his court-martial convening authority in a truly independent and impartial manner as is required.” 76 M.J. at 252. Even assuming the CDA in Chamblin had truly independent power, it’s not at all clear how his power was – or even appears to have been – inhibited.
But more seriously flawed is the remedy:
We likewise find that public confidence in military justice requires dismissal with prejudice in this case. Nearly six years have passed since LtGen Waldhauser was named the CDA. Like the appellant in Salyer, this appellant had a right to a timely trial free from UCI. Col Gruter, who would have recommended that this case be disposed of nonjudicially had evidence not been withheld, has recused himself, and cannot participate further. We find lesser remedies inadequate to the harm. Dismissal of the charges and specifications with prejudice is necessary in this case to ‘“foster[ ] public confidence in the . . . fairness of our system of justice.”’
Slip op. at 17.
It’s simply impossible to reconcile this remedy in this case where the appellant pleaded guilty with CAAF’s remedy of dismissal without prejudice in Boyce where the appellant pleaded not guilty.
Sure, some years have passed, but that’s in part due to the fact that the sentence did not trigger automatic review by the CCA under Article 66. Rather, “on 4 May 2016 the Judge Advocate General of the Navy sent this case to [the CCA] under Article 69(d).” Slip op. at 2. See United States v. Hathorne, 71 M.J. 200 (C.A.A.F. 2012) (CAAFlog case page). There’s no accounting of the time between the convening authority’s action (on February 21, 2013; slip op. at 10) and the JAG’s decision more than three years later, but under Article 69(b) Chamblin had at least two years from the date of the convening authority’s action to request relief from the JAG. So it’s hard to see which way the passage of time cuts.
Between the finding of an appearance of UCI and the remedy of dismissal with prejudice, the NMCCA’s decision in this case embodies a new, uniquely-strict scrutiny of unlawful command influence.