U.S. v. Johnson, 54 M.J. 32

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Proof, persuasion

1. the initial burden of raising evidence of command influence is on the defense; proof of command influence in the air will not suffice

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. once raised by evidence, the appearance or existence of unlawful command influence creates a rebuttable presumption of prejudice

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed by this Court under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that this Court reviews de novo

Miscellaneous Matters: Command Influence: Generally

1. where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed by this Court under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that this Court reviews de novo

Miscellaneous Matters: Command Influence: Chain of Command

1. appellant’s commander wore multiple hats, one of which involved medical-administrative matters; medical-administrative matters were handled entirely separate and apart from the matters on the criminal justice side, and the fact that appellant’s conduct also triggered such medical-administrative matters is not evidence of unlawful command influence on the criminal action
2. appellant’s commander wore multiple hats, one of which involved personnel matters; although the decision on how to process appellant’s conduct as a personnel issue was questioned at levels as high as the Navy Personnel Bureau, there was no evidence that anyone on the personnel side contacted anyone on the military justice side, and the fact that appellant’s personal conduct triggered actions and opinions of a personnel-administrative nature did not demonstrate in this case that there was unlawful command influence
3. although there were complaints about the direction of appellant’s case made to the Inspector General, the Inspector General recognized the command influence implications of his potential involvement, and no evidence of improper command influence on the part of the Inspector General was identified by appellant or found in the record
4. although there were discussions of whether to approve any adjudged dismissal at levels above the convening authority, the convening authority expressed that he would not “take a phone call” from higher levels, and there was no evidence of any attempt by higher command to influence the convening authority
5. although appellant claimed that adverse publicity and a hotline complaint had influenced his immediate commander to alter his support for appellant, evidence of record revealed that the commander’s support began to diminish upon receipt of a less than favorable report on appellant’s progress from the Family Service Center; there was no evidence of any unlawful command influence upon the commander

Miscellaneous Matters: Command Influence: Burdens

1. the initial burden of raising evidence of command influence is on the defense; proof of command influence in the air will not suffice
2. once raised by evidence, the appearance or existence of unlawful command influence creates a rebuttable presumption of prejudice