CAAF decided United States v. Salyer, No. 13-0186/MC, 72 M.J. 415 (opinion) (CAAFlog case page) on August 2, 2013, finding that the appearance of unlawful command influence was raised when the Government counsel accessed the personnel record of the trial judge – Lieutenant Colonel (LtCol) Mori – in order to obtain information that Government counsel used to challenge LtCol Mori as presiding judge for the trial, and when supervisory Government counsel engaged in an ex parte communication with LtCol Mori’s judicial superior and expressed displeasure about LtCol Mori’s rulings in the case, both actions leading to LtCol Mori’s recusal and replacement as the trial judge. CAAF also finds that the Government failed to cure this appearance of unlawful influence with proof that a disinterested person knowing all the facts would believe that Appellant received a fair trial.
Appellant – who was a Corporal in the Marines – was convicted contrary to his pleas in 2011, by a general court-martial composed of officer and enlisted members, of wrongful possession of child pornography in violation of Article 134, and sentenced to confinement for two years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad-conduct discharge. CAAF reverses the conviction and dismisses the case with prejudice (meaning that Appellant will be restored in rank, will receive back pay and promotion consideration, and may not be re-tried).
Chief Judge Baker writes for the court, joined by Judges Erdmann and Stucky. Judge Ryan dissents, joined by Senior Judge Cox.
The Chief Judge’s opinion is a massive 35 pages, but it treads rather softly around some key facts. Put simply, Government counsel made a slew of tactically and strategically nonsensical decisions in the prosecution of this case, creating a desperate situation with LtCol Mori threatening a mistrial after opening statements. The charges – which alleged distribution of child pornography and possession of a laptop computer containing child pornography – were poorly drafted (see slip op. at 3 N.2) and then stripped of key language before trial (see slip op. at 4). The laptop computer at the heart of the case either didn’t exist or was badly mishandled by the Government. See slip op. at 4. Government counsel fixated on meaningless issues, particularly whether the definition of “child pornography” in this case required that the image depict someone under the age of 18 or under the age of 16 (when the images clearly depicted individuals under the age of 16, and some under the age of 10). See slip op. at 25. And the animosity of Government counsel towards LtCol Mori is palpable, even in the mere snippets of the record reprinted in the opinion; they obviously held a grudge from LtCol Mori’s ruling disqualifying them from a different case (a remedy usually reserved for significant instances of prosecutorial misconduct). See slip op. at 14.
But Chief Judge Baker extends Government counsel a seemingly-undeserved degree of professional courtesy, merely disagreeing with the CCA’s conclusion that there was a good faith basis to access LtCol Mori’s personnel record and then question him about his personal life. Slip op. at 20. That questioning led to LtCol Mori recusing himself from further participating in the case. The subject personal fact was that LtCol Mori’s wife was 17 years old when he married her ten years prior. Most prosecutors armed with evidence including obscene images of children under the age of 10 would look past the ruling of LtCol Mori that, under the unique circumstances of this case, “a minor” was someone under the age of 16 vice under the age of 18. But this Government counsel:
testified that he was “prompted . . . to pull up [LtCol] Mori’s [personnel file]” because “the government was looking for some reason why [LtCol] Mori” had defined “minor” as under the age of sixteen, and someone in the prosecutor’s office had mentioned that LtCol Mori had a “very young wife.” He further stated that there was “absolutely no intent to embarrass the military judge. . . . [t]he sole purpose [was] to attempt to figure out if there were any outside influences in his decision.”
Additionally, the OIC testified at length as to his reasons for calling the CMJ. Along with trial counsel and the MJO, the OIC was “perplexed by” LtCol Mori’s ruling as to the definition of “minor.” When the MJO showed him LtCol Mori’s personnel file, which indicated that his wife was seventeen years of age at the time they wed, the OIC believed “at that point there was a relevant issue for the government that suggested bias on the part of [LtCol Mori].”
Ryan, J., diss. op. at 4-5. Nobody at CAAF thinks this was an even remotely good idea, with the dissenters “agree[ing] with the majority that the MJO’s action in accessing LtCol Mori’s personnel record was highly improper and may even rise to the level of an ethical violation.” Diss. op. at 11 N.3. Because of these actions, LtCol Mori was replaced by Colonel (Col) Richardson, who then heard testimony and argument about the Government’s conduct, ultimately ruling that corrective action well short of dismissal was warranted. Col Richardson was undeniably charitable to Government counsel in his ruling on the propriety of their actions that led to LtCol Mori’s removal from this case. But the degree of deference to be afforded to Col Richardson’s ruling is a strong undercurrent in this case, and his ruling is ultimately somewhat unclear. Chief Judge Baker explains:
Col Richardson found neither actual nor apparent unlawful influence regarding trial counsel’s actions. He concluded that “[t]he MJ’s statistically anomalous personal situation in this regard, vis-a-vis his sua sponte raising the age issue and then ruling quickly and curtly in the defense’s favor was a perfectly valid basis for the Government to voir dire and challenge the MJ” and, that “the Government was well within [its] rights based on these facts to inquire into the matter.”
Slip op. at 17. But he also notes:
Regarding LtCol Mori’s marriage, the replacement military judge stated on the record that, “I don’t know that marrying a 17-year-old woman could affect somebody’s career in any way, shape, or form. And I don’t believe that that is a proper consideration. It was a legal marriage.”
Slip op. at 29 N.13. Whatever Col Richardson’s final conclusion about the propriety of the Government’s inquiry, Chief Judge Baker concludes (somewhat anemically) that the inquiry was in fact not proper, listing it among the factors that raise the appearance of unlawful command influence:
Second, in response to what is described by the Government and the CCA as a rumor conveyed by trial counsel, the military justice officer obtained access to the military judge’s official personnel file to determine the age of the military judge’s wife at the time she married the military judge. This marriage occurred ten years prior to Appellant’s trial. Trial counsel made no logical nexus between the wife’s age at marriage and the ruling regarding the age of a minor. Further, there is a considerable difference between marrying a seventeen-year-old, an act sanctioned by law, and possession of child pornography.
Slip op. at 25. Sadly, neither Chief Judge Baker’s majority opinion nor Judge Ryan’s dissent address the overwhelming amount of precedent along the lines that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Such analysis would have been particularly useful in this case, where Government counsel predicated their actions on a tactically insignificant ruling, a factually irrelevant personal event from a decade prior, and an apparent personal grudge (itself the product of a different ruling).
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