According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

Turning to the merits, we agree that some of the facts and circumstances that Appellant has identified would harm the public’s perception of the military justice system. Indeed, matters (1) through (5) generally concern a point that the Government itself concedes in its brief, namely, that the efforts of trial counsel and SVC “to discourage law enforcement agents from interviewing [the victim’s husband]—an outcry witness—were unwise and inadvisable” because neither side “benefits when [AF]OSI fails to fully investigate a case.” We also specifically agree that the trial counsel, as a judge advocate, should have known better than to discourage an AFOSI investigation into potentially exculpatory evidence.

“Unwise[?]” Really? If it were you the accused doing that, I bet there would be an obstruction or attempted obstruction of justice on your charge sheet.

“[S]hould have known better[?]” If it were you the accused, doing that, the prosecutor would argue that that isn’t a defense.

If you are an accused, how would you feel about this? How about your spouse, your mother, your family, your friends, your neighbors, or your town? Would people believe you will get a fair trial in the military at a court-martial under the UCMJ?

The prosecution was saved in this case because, according to CAAF, the SVC and TC were removed from any further participation in the case, there was very thorough litigation at trial, and there was no intent to prejudice the accused by this “regrettable error,” and, fortunately, it turns out that there was, in the court’s view, no actual prejudice. Of course, SVCs and TCs are not going to concede that your regrettable error should not be punished. They will go all out to have you found guilty.

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Remember that before dismissing the panel at the end of the trial the military judge gives them instruction. They reminded of the secrecy of their deliberations and that they are not to discuss them with anyone unless a military judge orders that. There are several exceptions to the ban on questioning members about their deliberations. There are several exceptions to the Rule.

A member may testify about whether:

(A) extraneous prejudicial information was improperly brought to the members’ attention. United States v. Schloff, is an example of this exception (and exception (B)). During deliberations, the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial. (B) unlawful command influence or any other outside influence was improperly brought to bear on any member. See Schloff. (C) a mistake was made in entering the finding or sentence on the finding or sentence forms. We see this exception in use from time to time when the military judge believes the findings are ambiguous.

In Pena-Rodriquez v. Colorado, ___ U.S. ___, 2016 U.S. LEXIS 2424 (2016) , the Supreme Court basically held that “Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” In passing judgment the court noted that 16 jurisdictions allowed the no-impeachment rule to be pierced when there was an issue based on racial stereotyping. The court did caution however about creating exceptions to the no-impeachment rule. On the race issue,

The unmistakable principle underlying these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U. S. 545, 555 (1979). The jury is to be “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’ ” McCleskey v. Kemp, 481 U. S. 279, 310 (1987) (quoting Strauder, supra, at 309). Permitting racial prejudice in the jury system damages “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Powers v. Ohio, 499 U. S. 400, 411 (1991); cf. Aldridge v. United States, 283 U. S. 308, 315 (1931); Buck v. Davis, ante, at 22.

So as a military defense lawyer with a case at court-martial under the UCMJ, what can you do if the issue does not fit neatly into any of the exceptions and is not a racial stereotyping issue? Perhaps exception (A) might be the hole in the needle to thread. Yet, we have Missouri v. Gilbert, which says a jury verdict cannot be impeached when there is evidence the jurors held the accused’s silence against him.

The Gilbert court emphasized the limited exceptions in their state law making it only possible to have the testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations. The court observed that Gilbert was trying to create a new Missouri court-made exception for “improper consideration of a defendant’s failure to testify in reaching its verdict.” The Missouri court said it would not create this new exception.

In finding no error the court referenced Pena-Rodriguez v. Colorado, where the U.S. Supreme Court “warned that creating further exceptions to the general rule could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear … that the jury system would survive such efforts to perfect it.” Id. at 868 (internal citations and quotations omitted).

We do have some cases to review, for example,

• United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision.
• United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member’s alleged influence.
• United States v. Schloff, in which the two senior (O-6) members influenced the decision with comments like “politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or “based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault.” The Army Court of Criminal Appeals decided to remand the case for a new trial because of the improper influences on the panel deliberations–the client was acquitted at retrial.

One final note, in Iowa v. Spates, the court followed Pena-Rodriguez. In doing so the court said that appellate review had to apply an objective not subjective standard to any evidence.

[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.

It is challenging for a military defense lawyer to identify problems inside the jury box and even harder to make an appellate issue should there be some evidence of panel member misconduct. One way for the government to avoid the issue is to take special care during an argument not to raise the specter of a decision based on anything but the facts and the law. Seue, e.g., United States v. Garcia. Here the prosecution bilged the case for an accused who was found not guilty on retrial.

“This case involves numerous instances of improper argument during findings. Some were objected to and some were not. We discuss each instance separately and collectively assess whether they resulted in prejudice to appellant.”

Obviously, objections are more necessary now than before. The appellate courts are becoming more strict on waiver of objections and more parsimonious with the plain error analysis. Courts-martial under the UCMJ are supposed to be fairly decided on the evidence and the law and not on Service policy or similar doctrine such as zero-tolerance.

Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).

Should the TJAGs also send a “letter to self?”

The general rule is the defense does not waive UCI by failing to raise it at trial. Id. at 193. This rule, however, is not absolute. The United States Court of Appeals for the Armed Forces (CAAF) has distinguished UCI in the accusative phase (e.g., involving the preferral, forwarding, and referral of charges), from UCI in the adjudicative phase (e.g., interference with witnesses, judges, members, and counsel). United States v. Weasler, 43 M.J. 15, 17-18 (C.A.A.F. 1995). In making this distinction, the CAAF concluded claims of UCI during the accusative phase can be waived. Id. at 19 (“Where there is coercion in the preferral process, ‘the charges are treated as unsigned and unsworn,’ but the ‘failure to object’ constitutes waiver of the issue.”). The court has also found waiver of defects in the forwarding process if not challenged at trial. Id. (citing United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994)). Having concluded referral is part of the accusatorial stage, we examine appellant’s knowledge of the facts at the time and whether appellant was in some way precluded from raising UCI at trial. “If command influence is known, or reasonably could be known in either the accusatorial stage or the selection process, failure to raise the issue constitutes waiver.” See United States v. Upshaw, 49 M.J. 111, 114 (C.A.A.F. 1998) (Crawford, J., concurring) (citing Weasler, 43 M.J. at 17).

United States v. Shakur, ARMY 2018. Take a look at note 10.

This Court unequivocally endorses the Supreme Court’s observation that “[f]ederal courts have an independent interest in ensuring that … legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).

United States v. Boyce, 76 M.J. 242, 253 (C.A.A.F. 2017).

The NMCCA has decided United States v. Brown — one of the questions:

Finally, the appellant avers that the referral of charges evinces unlawful command influence since the State of Florida declined to prosecute based on the same evidence and the decision to refer the charges to court-martial was solely due to the perceived career ramifications of CAs who do not refer sexual assault allegations to court-martial. The appellant contends that after the State of Florida decided not to prosecute the appellant for sexual offenses because of a lack of evidence, the CA referred the charges and specifications against the appellant to court-martial because she was under pressure to prosecute sexual assault cases. The appellant cites a report from a subcommittee of the congressionally-mandated Judicial Proceedings Panel as evidence that CAs feel pressure to refer cases to courts-martial because of public and congressional interest.

Here’s the interesting comment by the court:

A CA “merely applies a reasonable grounds standard in determining whether to refer charges to a general court-martial[.]”

The court cites to United States v. Boyce, 76 M.J. 242, 250 (C.A.A.F. 2017) and R.C.M. 601(d)(1). In Boyce the CAAF describes this as a “quite low standard.” Id. So, what happened to probable cause, and why bother with an Article 32, UCMJ, probable cause determination. With this obvious inconsistency, it appears that a CA can refer charges for little if any reason. Is this not an unfettered unrestrained standard? And are we agreed that it doesn’t matter how much proof the government has, you are going to trial—that’s a cynic’s view? As an aside, Boyce is one of several cases which demonstrate the adverse effect of political interference in a specific court-martial.

Bottom line, reasonable grounds to believe an offense happened (the old Article 32, UCMJ standard) is all that’s needed for referral of charges to trial.

“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW]. Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . …. was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process. ”

Today (5 February 2018) the Army Court of Criminal Appeals agreed with us. When a military jury decides to convict a person because of sexual assault prevention politics and the Service public relations–that’s unlawful command influence (UCI).

No. 16-0309/AR. U.S. v. Michael B. O’Connor. CCA 20130853. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel were ineffective in failing to investigate alleged unlawful command influence in the preferral process. SeeUnited States v. Ginn, 47 M.J. 236(C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue: WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY HIS COUNSEL FAILING TO INVESTIGATE ALLEGED UNLAWFUL COMMAND INFLUENCE IN THE PREFERRAL PROCESS. The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals shall order a hearing pursuant to DuBay. Once the necessary information is obtained, the court will complete its Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The ACCA opinion does not appear to be on their website. The one O’Connor case is actually an Air Force case. All I could find in Lexis is an earlier grant of a motion for extra time to file a supplement.

More to come.

C.A.A.F. seems to have this definition, among several, of what clearly erroneous means.

At least one court has defined the clearly-erroneous standard by stating that it must be “more than just maybe or probably wrong; it must … strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988).

United States v. French, 38 M.J. 420, 425 (C.M.A. 1993).

This quote above came to me from an Article 32, UCMJ, hearing IO report. And

The standard of review for evidentiary rulings is whether the judge abused his discretion. The judge in this case did not. The abuse of discretion standard requires not that the judge was wrong, but rather was clearly wrong. As we have stated, it is not that the judge is maybe wrong or probably wrong, but rather “it must strike a cord of wrong with the force of a five-week-old, unrefrigerated dead fish.”

United States v. Byrd, 60 M.J. 4, 12 (C.A.A.F. 2004).

Now just in case you thought they were getting a little carried away, riddle me this one.

Our senior Court provided us with a vivid sensory perception to apply to the reversal standard, when it stated: “It must be ‘more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.'” United States v. French, 38 M.J. 420, 425 (C.M.A. 1993)(quoting Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988)). The smell in this case is not that of old, dead fish, but rather it is the scent of the thick, foggy mist of musket fire that more than two and a quarter centuries ago drifted over the fields at Lexington and Concord.

United States v. Daniels, 58 M.J. 599, 620 (N-M.C.C.A. 2003)(Villamez, J., dissenting), see also United States v. Brinton, NMCM 200001971, 2002 CCA LEXIS 307, at *1 (N-M.C.C.A. Dec. 19, 2002).

Some cases are just more interesting to read.

NEWPORT NEWS The family of a sailor slain in Newport News is pressing the Navy to court-martial and dishonorably discharge the fellow sailor convicted of killing her. Sen. John Kerry, D-Mass., has already weighed in, telling the Navy last month that the sailor, Darren W. Mackie, 22, should be dishonorably discharged “at the very least,” which the Navy hasn’t pursued. The slain sailor’s parents, Mary and Don Trask of Bradford, Mass., have also written to President Barack Obama, Defense Secretary Robert Gates and others.

Note Sen. Kerrey’s request that a dishonorable discharge be issued. Only a general court-martial can impose a DD as part of a sentence. If discharged administratively, the worst could be an Other Than Honorable Conditions Discharge.

Here’s a link to NMCCA’s unpublished opinion in Chessani, which it released today. Bottom line up front: the Government’s appeal is denied.