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Reasonable grounds (a quite low standard) is all that is needed to refer charges–not probable cause
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.