Opinion Analysis: Admission of a non-final administrative reprimand during sentencing invaded the province of the court-martial, in United States v. Jerkins
CAAF decided the Army case of United States v. Jerkins, 77 M.J. 225, No. 17-0203/AR (CAAFlog case page) (link to slip op.), on Thursday, February 8, 2018. Unanimously agreeing that the military judge abused her discretion by allowing the prosecution to introduce a non-final general officer memorandum of reprimand (GOMOR) into evidence during the sentencing phase of the court-martial, a bare majority of the court finds prejudice and reverses the sentence and the decision of the Army CCA, remanding for reassessment or a sentence rehearing.
Chief Judge Stucky writes for the court, joined by Judge Sparks and Senior Judge Effron. Judge Ohlson dissents, joined by Judge Ryan.
Major (O-4) Jerkins was convicted of assault consummated by battery upon a child, in violation of Article 128, for hitting his three-year-old step-son with a belt. After the members made their findings, the defense called witnesses during the sentencing phase to testify about Jerkins prior good service. In rebuttal the prosecution offered into evidence a GOMOR that was issued approximately two weeks before trial.
A GOMOR is a nonpunitive (administrative) letter inserted into the recipient’s personnel record, and it usually has a significant negative impact on the recipient’s military career. Paragraph 3-4 of Army Regulation 600-37 establishes procedures for the issuance and filing of a GOMOR, including a process that ensures soldiers have an opportunity to respond to the underlying factual claims. In Jerkins case, that process was still underway when the GOMOR was admitted into evidence and Jerkins was sentenced to a dismissal.
The defense objected to admission of the GOMOR, but the military judge admitted it over the objection. The members then sentenced Jerkins to confinement for six months and a dismissal. Jerkins had 19 years of service when he was charged, and the adjudged dismissal denied him a military retirement. The Army CCA affirmed the findings and sentence after rejecting a claim of ineffective assistance of counsel raised against Jerkins’ civilian and military trial defense counsel. CAAF then granted review of a single issue:
Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.
While CAAF splits on the impact of the GOMOR on the adjudged sentence, it unanimously concludes that the GOMOR was improperly admitted even under the deferential standard of abuse of discretion.
Chief Judge Stucky explains that CAAF “review[s] the military judge’s decision to admit or exclude evidence for an abuse of discretion.” Slip op. at 4 (citing United States v. Erikson, 76 M.J. 231, 234 (C.A.A.F. 2017)). “A military judge abuses [her] discretion if [her] findings of fact are clearly erroneous or [her] conclusions of law are incorrect.” Slip op. at 4 (quoting United States v. Mitchell, 76 M.J. 413, 417 (C.A.A.F. 2017) (alterations in original)).
Here the military judge abused her discretion because the GOMOR was inadmissible under the circumstances. Chief Judge Stucky explains:
In this case, Appellant was initially charged with wrongfully engaging in a sexual relationship with an Army enlisted woman. The convening authority withdrew that charge from trial three days before arraignment. Nevertheless, after arraignment, a different general officer decided to issue the GOMOR to Appellant for the same conduct, with an explicit suggestion that Appellant was not fit for continued service in the Army. Moreover, the GOMOR was admitted into evidence without the normal due process required by Army regulations, viz., Appellant’s exercise of his right to rebuttal. Under the circumstances of this case, we hold that the commander’s opinion that Appellant was unfit for continued military service—essentially, a recommendation that he be dismissed from the service—invaded the province of the members of the court-martial. Therefore, the military judge abused her discretion by admitting it into evidence.
Slip op. at 5. The dissenters agree. Diss. op. at 1.
Chief Judge Stucky couches the finding that the GOMOR was improperly admitted in the language of unlawful command influence, observing that “the question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness.” Slip op. at 4-5 (quoting United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989)). This is because the GOMOR stated, in part:
You have failed to live up to the Army values and you have betrayed our trust. I have serious doubts regarding your ability for continued service in the United States Army. I am profoundly disappointed that a commissioned officer would engage in this type of misconduct.
Slip op. at 3 (quoting GOMOR) (emphasis in slip op.). The underlying conduct was that Jerkins “engag[ed] in a sexual relationship with an Army enlisted woman, the victim’s mother, who had since become [Jerkins]’s wife.” Slip op. at 3.
The injection of the general’s doubts into the members’ deliberations on the sentence is what CAAF finds “invaded the province of the court-martial.” Slip op. at 1. But CAAF only faults the military judge for admitting the GOMOR, while the general and the trial counsel avoid criticism for this somewhat brazen attempt to use a nonpunitive process for punitive purposes (and also the overzealous effort to win a severe punishment for Jerkins).
Furthermore, while the non-finality of the GOMOR is clearly a factor in CAAF’s finding of error, it’s not clear that it’s a dispositive factor because the general’s opinion would still invade the province of the members if the process was final. The simplest takeaway from CAAF’s decision in this case is that a GOMOR that essentially recommends dismissal or discharge is inadmissible under any circumstances.
Because the GOMOR was improperly admitted over a defense objection, the Government Division had the burden on appeal to show that the error is harmless. The majority finds that it failed to meet that burden under both the non-constitutional standard of mere harmlessness and the constitutional standard of harmlessness beyond a reasonable doubt. Slip op. at 6.
The dissenters, however, find that other documents in Jerkins service record “completely overwhelmed the negative sentiments expressed in the GOMOR about Appellant’s alleged fraternization.” Diss. op. at 2. They conclude that:
“[A]lthough it clearly was error for the military judge to admit the GOMOR pertaining to Appellant’s alleged fraternization, that error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.
Diss. op. at 3 (marks and citation omitted).
• ACCA opinion
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis