U.S. v. Dugan, 58 M.J. 253

Military Justice Personnel: Court Members: Generally

1. long recognized and very substantial concerns support the protection of jury deliberations from intrusive inquiry; as a result, deliberations of court-martial members ordinarily are not subject to disclosure; the purpose of this rule is to protect freedom of deliberation, protect the stability and finality of verdicts, and protect court members from annoyance and embarrassment
2. under Mil.R.Evid. 606(b), there are three circumstances that justify piercing the otherwise inviolate deliberative process to impeach a verdict or sentence: (1) when extraneous information has been improperly brought to the attention of the court members; (2) when outside influence has been brought to bear on a member; and (3) when unlawful command influence has occurred; appellant’s case involves the first and third of these categories
3. the general and common knowledge a court member brings to deliberations is an intrinsic part of the deliberative process, and evidence about that knowledge is not competent evidence to impeach the members’ findings or sentence
4. even if one member did tell the others that appellant would receive substance abuse counseling if sentenced to confinement, and even if the others did factor that into their sentence determination, it would not involve extraneous prejudicial information; to the contrary, it would fall squarely within the deliberative process which is protected by Mil.R.Evid. 606(b); thus, it cannot be considered by this or any other court as impeaching the validity of appellant’s sentence

Trial Stages: Post-Trial Hearings: DuBay / Factfinding Hearings

1. where appellant has successfully raised the issue of unlawful command influence and a DuBay hearing is necessary to determine whether unlawful command influence existed during the sentencing phase of appellant’s court-martial, it is the Government that must now rebut the presumption of unlawful command influence (1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the DuBay judge that the facts do not constitute unlawful command influence; or (3) by persuading the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial; whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt
2. when unlawful command influence has been directed at court members, the Government’s ability to persuade the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial is limited by Mil.R.Evid. 606(b); this rule prohibits inquiry into two types of matters: (1) any matter or statement occurring during the course of the deliberations, and (2) the effect of anything upon a member’s or any other member’s mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the member’s mental process in connection therewith
3. Mil.R.Evid. 606(b) permits testimony about any matter or statement occurring during the deliberations when there is a question whether there was unlawful command influence; this exception does not permit circumvention of the prohibition against inquiry into the effect on a member; thus, in this case, Mil.R.Evid. 606(b) permits voir dire of the members regarding what was said during deliberations about the commander’s comments, but the members may not be questioned regarding the impact of any member’s statements or the commander’s comments on any member’s mind, emotions, or mental processes; in conducting the DuBay proceedings, the military judge shall not voir dire any member as to the effect of anything upon a member’s mind or emotions as influencing a member to assent to or dissent from the findings or sentence or a member’s mental process in connection therewith
4. if the military judge who presides at the DuBay is not satisfied beyond a reasonable doubt that unlawful command influence did not exist during the sentencing phase of appellant’s court-martial, or that one or more members did not exert the influence of superior rank on a junior member or purport to wear the mantle of the convening authority by conveying to the other members his or her interpretation of the convening authority’s message, that judge shall set aside appellant’s sentence and order a sentence rehearing

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

1. at trial and on appeal, the defense has the initial burden of producing sufficient evidence to raise unlawful command influence; the burden of proof is low, but more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence; at trial, the accused must show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings; on appeal, an appellant must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness
2. where appellant has successfully raised the issue of unlawful command influence and a DuBay hearing is necessary to determine whether unlawful command influence existed during the sentencing phase of appellant’s court-martial, it is the Government that must now rebut the presumption of unlawful command influence (1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the DuBay judge that the facts do not constitute unlawful command influence; or (3) by persuading the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial; whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt

Miscellaneous Matters: Command Influence: Members

1. a court member expressed concern in a letter to the convening authority that (1) some members stated a bad-conduct discharge was a "given" in this case, and (2) some members made statements suggesting they were influenced by the message put out by the convening authority at his Commander’s Call; as to these concerns, CAAF concludes that they make a DuBay hearing necessary to determine whether unlawful command influence existed during the sentencing phase of appellant’s court-martial; under the circumstances of this case, such statements fall squarely within the unlawful command influence exception of Mil.R.Evid. 606(b) and are not protected from disclosure
2. the member's letter constitutes some evidence that unlawful command influence may have taken place during the sentencing phase of appellant’s court-martial where (1) it is more than mere speculation because it is detailed and based on her own observations; and (2) it contains assertions which, if true, suggest that members of appellant’s court-martial who attended the Commander’s Call unfairly based appellant’s sentence, at least in part, on a concern they would be viewed unfavorably by the convening authority (their commanding officer) if they did not impose a sentence harsh enough to be consistent with the convening authority’s message at the Commander’s Call that drug use is incompatible with military service
3. CAAF has long held that the use of command meetings to purposefully influence the members in determining a court-martial sentence constitutes unlawful command influence in violation of Article 37, UCMJ, 10 U.S.C. § 837; CAAF also has held that regardless of a commander’s intent, the mere confluence of the timing of such meetings with members during ongoing courts-martials and their subject matter dealing with court-martial sentences can require a sentence rehearing
4. command presence in the deliberation room, whether intended by the command or not, chills the members’ independent judgment and deprives an accused of his or her constitutional right to a fair and impartial trial
5. when unlawful command influence has been directed at court members, the Government’s ability to persuade the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial is limited by Mil.R.Evid. 606(b); this rule prohibits inquiry into two types of matters: (1) any matter or statement occurring during the course of the deliberations, and (2) the effect of anything upon a member’s or any other member’s mind or emotions as influencing the member to assent to or dissent from the findings or sentence or concerning the member’s mental process in connection therewith
6. Mil.R.Evid. 606(b) permits testimony about any matter or statement occurring during the deliberations when there is a question whether there was unlawful command influence; this exception does not permit circumvention of the prohibition against inquiry into the effect on a member; thus, in this case, Mil.R.Evid. 606(b) permits voir dire of the members regarding what was said during deliberations about the commander’s comments, but the members may not be questioned regarding the impact of any member’s statements or the commander’s comments on any member’s mind, emotions, or mental processes; in conducting the DuBay proceedings, the military judge shall not voir dire any member as to the effect of anything upon a member’s mind or emotions as influencing a member to assent to or dissent from the findings or sentence or a member’s mental process in connection therewith
7. if the military judge who presides at the DuBay is not satisfied beyond a reasonable doubt that unlawful command influence did not exist during the sentencing phase of appellant’s court-martial, or that one or more members did not exert the influence of superior rank on a junior member or purport to wear the mantle of the convening authority by conveying to the other members his or her interpretation of the convening authority’s message, that judge shall set aside appellant’s sentence and order a sentence rehearing

Miscellaneous Matters: Command Influence: Burdens

1. at trial and on appeal, the defense has the initial burden of producing sufficient evidence to raise unlawful command influence; the burden of proof is low, but more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence; at trial, the accused must show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings; on appeal, an appellant must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness
2. where appellant has successfully raised the issue of unlawful command influence and a DuBay hearing is necessary to determine whether unlawful command influence existed during the sentencing phase of appellant’s court-martial, it is the Government that must now rebut the presumption of unlawful command influence (1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the DuBay judge that the facts do not constitute unlawful command influence; or (3) by persuading the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial; whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt