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.