Our #4 military justice story of the year involves five Marines: an accused, a military judge, two prosecutors, and an officer-in-charge.
The accused, Corporal Salyer, was tried in November, 2011, for wrongful possession and distribution of child pornography. At the beginning of the trial the military judge, Lieutenant Colonel Mori, made an odd ruling about the definition of child pornography. He determined that because of the way the case was charged, the definition of child pornography would include an image of a person under the age of 16 but not of a person under the age of 18. The trial counsel, Captain Harley Maya, argued against this interpretation, but she was overruled. Captain Maya then gave an opening statement to the members in which she referred to an item that Lieutenant Colonel Mori had excluded from evidence.
Lieutenant Colonel Mori threatened to declare a mistrial if the Government couldn’t find another way to admit the excluded item, and Captain Maya went for help. She met with Captain Jesse Schweig, the “military justice officer” (a supervisory position). Here’s CAAF’s description of what happened next:
According to Capt Schweig, Capt Maya told him of rumors that “Lieutenant Colonel Mori may have had a young wife.” This prompted Capt Schweig to access LtCol Mori’s official personnel record. . . . having retrieved the information from LtCol Mori’s personnel record, Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC) of the base Legal Services Center. They discussed the military judge’s decision to use age sixteen vice age eighteen to define a minor for purposes of the charged child pornography offenses.
United States v. Salyer, 72 M.J. 415, 420 (C.A.A.F. 2013) (link to slip op.). The OIC then called Lieutenant Colonel Mori’s judicial supervisor to “let him know that a significant event was about to happen,” while Captain Maya conducted a voir dire of the judge during which “she asked the military judge how old his wife was when they married.” Salyer, 72 M.J. at 421. Lieutenant Colonel Mori answered that his wife was 17 when they married. But Captain Maya already knew this. She then offered material Captain Schweig obtained from the judge’s personnel record as an exhibit for the trial record.
The next day, Lieutenant Colonel Mori recused himself from the case with a written ruling that cited “LtCol Mannle’s phone call to [his judicial superior] and the trial counsel’s reference to his wife’s age at the time of their marriage.” Salyer, 72 M.J. at 421. A new judge was assigned, and Corporal Salyer was convicted of the possession offense and sentenced to confinement for two years, total forfeitures, reduction to E-1, and a bad-conduct discharge.
We learned about the case a year later, when the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued an opinion affirming the findings and sentence. The NMCCA was unfazed by a prosecutor rooting around in a military judge’s personnel record, and the court asserted an “innocent purpose behind the call” to the judge’s supervisor. United States v. Salyer, No. 201200145, slip op. at 9 (N-M.Ct.Crim.App. Oct. 23, 2012) (link to slip op.).
But CAAF felt differently, and on August 2, 2013, it reversed Corporal Salyer’s conviction and dismissed the case with prejudice. In a 34 page opinion authored by Chief Judge Baker, a majority of the court concluded that, “the unprofessional actions of the Government improperly succeeded in getting the military judge to recuse himself from Appellant’s court-martial.” Salyer, 72 M.J. at 428.
When a prosecutor facing a mistrial suggests that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor digs through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participates in the effort to remove the judge, causing the judge to recuse himself, and the accused is sentenced to two years, but 21 months later an appellate court throws out the case because of the actions of the prosecutors and the officer-in-charge, that might be enough to qualify for a spot on our top ten list.
But that isn’t the end of the story of this case.