CAAF decided the Air Force case of United States v. Boyce, __ M.J. __, No. 16-0546/AF (CAAFlog case page) (link to slip op.), on Monday, May 22, 2017. A deeply-divided court concludes that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this case. And while the court finds no prejudice to Boyce, the majority “conclude[s] that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings.” Slip op. at 17. As a remedy CAAF sets aside Airman (E-2) Boyce’s convictions of the rape and battery of his wife, authorizing a rehearing.
Judge Ohlson writes for the court, joined by Chief Judge Erdmann and Judge Sparks. Judge Stucky and Judge Ryan dissent, both writing separately.
CAAF reviewed a single issue:
The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?
The convening authority at issue was Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), he referred Airman Boyce’s case for trial by general court-martial.
The briefs explained that numerous subordinates recommended that Franklin make that referral decision, including Boyce’s Squadron Commander, the Staff Judge Advocate to the Special Court-Martial Convening Authority, the Special Court-Martial Convening Authority himself, and Lt Gen Franklin’s Staff Judge Advocate. Nevertheless, Airman Boyce’s defense asserted at trial, on appeal at the Air Force CCA, and finally to CAAF that the referral decision was the product of unlawful influence. CAAF’s five judges are unanimous in their rejection of this claim of actual influence. But a bare majority of the court “deem[s] the totality of the circumstances in this case to be particularly troubling and egregious,” slip op. at 17, and “conclude[s] that the appearance of unlawful command influence in this case cannot go unaddressed,” slip op. at 18.
Leading this majority, Judge Ohlson provides a comprehensive review of CAAF’s UCI jurisprudence, meticulously differentiating between “actual unlawful command influence and the appearance of unlawful command influence.” Slip op. at 6 (emphases in original). He explains 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.
Slip op. at 10. The dissenters, however, strongly disagree with this standard, though they clearly disapprove of the actions of Air Force officials that brought this issue before CAAF.
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