U.S. v. Stoneman, 57 M.J. 35

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Congress intended the Courts of Criminal Appeals to act as factfinder in an appellate-review capacity and not in the first instance as a trial court

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

1. (on appeal, Court of Appeals for the Armed Forces reviews de novo the question whether the facts constitute unlawful command influence). (once an issue of unlawful command influence has been raised, the Government must persuade appellate court beyond a reasonable doubt either that there was no unlawful command influence or that the proceedings were untainted)

Miscellaneous Matters: Command Influence: Generally

1. once unlawful command influence is raised, it is incumbent on the military judge to act in the spirit of the Code by avoiding even the appearance of evil in his courtroom and by establishing the confidence of the general public in the fairness of the court-martial proceedings; disposition of an issue of unlawful command influence falls short if it fails to take into consideration the concern of Congress and Court of Appeals for the Armed Forces in eliminating even the appearance of unlawful command influence at courts-martial

Miscellaneous Matters: Command Influence: Members

1. defense counsel, trial counsel, and the military judge must fully question the court members during voir dire to determine whether a commander’s comments had an adverse impact on the member’s ability to render an impartial judgment - voir dire, however, may not be enough, and witnesses may be required to testify on the issue of unlawful command influence
2. further proceedings were necessary to determine if the court-martial was tainted unlawful command influence where: (1) there was no factfinding hearing; (2) there was no analysis under the analytical framework for command influence at the trial level; (3) as a result, there are no trial-level findings of fact regarding the content, tone, and impact of the brigade commander’s leadership training session; (4) there was no way to determine if additional witnesses would shed light on the issue; (5) the record of trial does not provide an appellate court the opportunity to observe the demeanor of the court members with respect to any influence over them
3. the question whether there is an appearance of unlawful command influence is judged objectively, through the eyes of the community; demeanor of a potentially influenced court member is a measure of actual bias, and it is also relevant to an objective observer’s consideration and to whether the influence of command placed an intolerable strain on public perception of the military justice system

Miscellaneous Matters: Command Influence: Burdens

1. there is an established analytical framework for resolving claims of unlawful command influence: (1) at trial, the initial burden is on the defense to "raise" the issue by "some evidence", i.e., facts that, if true, constitute unlawful command influence, and the defense must show that the unlawful command influence has a logical connection to the court-martial in terms of potential to cause unfairness in the proceedings; (2) once the issue is raised, the burden shifts to the Government to show either that there was no unlawful command influence or that any unlawful command influence did not taint the proceedings
2. if the Government elects to show that there was no unlawful command influence, it may do so either by disproving the predicate facts on which the allegation of unlawful command influence is based, or by persuading the military judge that the facts do not constitute unlawful command influence; if Government chooses to not disprove the existence of unlawful command influence, it must prove that the unlawful command influence will not affect the proceedings - whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt
3. the quantum of proof required under RCM 912(f)(3) to support a causal challenge is higher than the "some evidence" required to raise an issue of unlawful command influence; thus, a military judge’s determination that the defense has not sustained the greater burden of establishing a challenge under RCM 912(f)(3) does not answer the question whether the defense has met the lesser burden of presenting "some evidence" of unlawful command influence, thereby shifting the burden to the Government