U.S. v. Simpson, 58 M.J. 368

First Principles: Constitutional Matters: Due Process

1. the doctrine of unfair pretrial publicity is based upon the constitutional right to due process

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

1. the offenses of rape and forcible sodomy both require proof that the act was committed by force and without consent; although force and lack of consent are separate elements, our case law recognizes that there may be circumstances in which the two elements are so closely intertwined that both elements may be proved by the same evidence
2. consent induced by fear, fright, or coercion is equivalent to physical force; such constructive force may consist of expressed or implied threats of bodily harm; constructive force may be shown by proof of a coercive atmosphere that includes, for example, threats to injure others or statements that resistance would be futile
3. in the context of the special relationship between noncommissioned officers and trainees, we have observed that the NCO cannot create by his own actions an environment of isolation and fear and then seek excusal from the crime of rape by claiming the absence of force especially where, as here, passive acquiescence is prompted by the unique situation of dominance and control presented by appellant’s superior rank and position
4. rank disparity alone is not sufficient to constitute constructive force; the evidence in this case, however, presents far more than mere rank disparity between appellant and his victims: (1) appellant’s physically imposing size; (2) his reputation for being tough and mean; (3) his position as a noncommissioned officer; (4) his actual and apparent authority over each of the victims in matters other than sexual contact; (5) the location and timing of the assaults, including his use of his official office and other areas within the barracks in which the trainees were required to live; (6) his refusal to accept verbal and physical indications that his victims were not willing participants; and (7) the relatively diminutive size and youth of his victims, and their lack of military experience; additionally, appellant used his authority over the victims to issue orders that placed them in the isolated locations where the charged rapes occurred

Trial Stages: Merits: Instructions › Generally

1. the military judge provided instructions on the pertinent elements, and the issue before us is whether the military judge erred by not providing greater specificity or amplification; any such deficiency is waived by defense counsel's failure to object unless the instructions were so incomplete as to constitute plain error
2. with respect to deviations from the model instructions in the Benchbook, the military judge is not required to track literally its guidance or follow literally its non-binding examples
3. the instruction actually given by the military judge, which was discussed in detail with counsel, summarized the general concept of constructive force under our case law; if defense counsel believed that further amplification of the law by the military judge was warranted, the time to request such modifications was at trial, when the military judge could have tailored any requested wording to the law and the evidence; counsel was actively engaged in the consideration of the instruction at trial; under these circumstances, there was no plain error
4. we do not agree that, even if not waived, the content of the constructive force instruction provided by the military judge was defective; appellant suggests that the military judge erred by providing a constructive force instruction referring to fear of "physical injury" rather than fear of "great bodily harm"; fear of "great bodily harm" is used in the MCM with respect to inferring consent on the element of lack of consent; with respect to the use of constructive force to prove the element of force, however, we have held that it is sufficient if the Government proves that the abuse of authority placed the victim in fear of physical injury
5. even if it was error for the military judge to give a constructive force instruction for rape that deviated from the model instruction, it was not plain error where the constructive force instruction and related instruction on the element of force sufficiently informed the members that force was required for the crime of rape, that it could be in the form of constructive force, and that constructive force could be brought to bear on the victim through the use or abuse of military authority that created a reasonable belief that the victim would suffer physical injury or that resistance would be futile

Trial Stages: Appeals: Preservation of Error / Plain Error

1. the instruction actually given by the military judge, which was discussed in detail with counsel, summarized the general concept of constructive force under our case law; if defense counsel believed that further amplification of the law by the military judge was warranted, the time to request such modifications was at trial, when the military judge could have tailored any requested wording to the law and the evidence; counsel was actively engaged in the consideration of the instruction at trial; under these circumstances, there was no plain error
2. even if it was error for the military judge to give a constructive force instruction for rape that deviated from the model instruction, it was not plain error where the constructive force instruction and related instruction on the element of force sufficiently informed the members that force was required for the crime of rape, that it could be in the form of constructive force, and that constructive force could be brought to bear on the victim through the use or abuse of military authority that created a reasonable belief that the victim would suffer physical injury or that resistance would be futile

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

1. the issue of whether a court-martial panel was properly instructed is a question of law, which we review de novo
2. for appellate consideration of command influence, the defense 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; in the course of addressing these issues, appellate courts must consider apparent as well as actual unlawful command influence

Trial Stages: Appeals: Waiver

1. the military judge provided instructions on the pertinent elements, and the issue before us is whether the military judge erred by not providing greater specificity or amplification; any such deficiency is waived by defense counsel's failure to object unless the instructions were so incomplete as to constitute plain error

Miscellaneous Matters: Command Influence: Generally

1. the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial; even if there is no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system
2. the prohibition against unlawful command influence does not require senior military and civilian officials to refrain from addressing matters affecting the training of recruits through press releases, responses to press inquiries, and similar communications; when members of the public entrust their sons and daughters to the military training process, they expect to receive accurate and complete information about the quality of the training environment, including the state of discipline; the public also expects military leaders, who exercise both prosecutorial and judicial functions in the military justice process, to exercise due care in developing and executing communications plans when potential military justice actions are pending
3. when those with the mantle of command authority deliberately orchestrate pretrial publicity with the intent to influence the results in a particular case or series of cases, the pretrial publicity itself may constitute unlawful command influence; even the perception that pretrial publicity has been engineered to achieve a prohibited end, regardless of the intent of those generating the media attention, may lead to the appearance of unlawful command influence

Miscellaneous Matters: Command Influence: Burdens

1. our cases provide a specific procedure for use at trial to address allegations of actual unlawful command influence; first, the defense must show facts which, if true, constitute unlawful command influence; second, the defense must show 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; the threshold for raising the issue at trial is low, but it is more than mere allegation or speculation; the defense is required to present some evidence of unlawful command influence; third, if the defense has made the requisite showing under the first two steps, the burden shifts to the Government to: (1) disprove the predicate facts on which the allegation of unlawful command influence is based; (2) persuade the military judge that the facts do not constitute unlawful command influence; or (3) prove at trial that the unlawful command influence will not affect the proceedings; whichever tactic the Government chooses, the quantum of proof is beyond a reasonable doubt
2. depending on the nature of the alleged unlawful command influence and other pertinent circumstances, the Government may demonstrate that unlawful command influence will not affect the proceedings in a particular case as a result of ameliorative actions; such actions might include transfer of responsibility for disposition of charges to commanders not subject to the influence, orders protecting servicemembers from retaliation, changes in venue, liberal grants of challenges for cause, and the use of discovery and pretrial hearings to delineate the scope and impact of alleged unlawful command influence
3. for appellate consideration of command influence, the defense 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; in the course of addressing these issues, appellate courts must consider apparent as well as actual unlawful command influence
4. where the vast majority of the comments made by the senior military and civilian officials were not particularly remarkable and where the overall tenor of statements made by senior officials did not constitute an express or implied command position on disposition or adjudication, appellant failed to meet his burden of demonstrating that the general tenor of the leadership’s interaction with the media demonstrated either the intent to improperly influence the court-martial process or the appearance of such an influence; to the extent that appellant relies upon specific comments in the media by persons outside the chain of command, including Members of Congress, appellant failed to show that the personnel involved in the disposition of charges or on the court-martial panel were aware of such comments or that such comments could reasonably be perceived as carrying the force of command influence
5. where the record of trial indicates that the persons involved in appellant's case understood that the military leadership's discussion in command publications and instructional programs of a "zero tolerance" policy on sexual harassment stood for the proposition that allegations of sexual harassment should not be ignored, but did not require a particular disposition, appellant failed to demonstrate that the phrase "zero tolerance" raised the issue of unlawful command influence; moreover, assuming that appellant met his burden, the testimony of the forwarding and referring authorities, as well as responses of the panel members on voir dire, demonstrated beyond a reasonable doubt that appellant’s trial was not prejudiced by references to the Army’s "zero tolerance" policy under the particular circumstances of this case
6. where the testimony of the officers involved in the disposition decision and the answers of the panel members during voir dire demonstrated that the persons responsible for prosecutorial discretion and adjudication in appellant’s court-martial were either completely unaware of the use by senior military and civilian leadership of phrases such as "no leniency" and "severe punishment" and of conclusions that there had been an "abuse of power" and there was "no such thing as consensual sex between drill sergeants and trainees," or had only a vague recollection of such comments by the senior leadership, where none of these statements were transmitted directly to persons involved in the court-martial process, nor were they communicated through command channels, and where the phrases at issue were not otherwise repeated or disseminated in a manner so direct or pervasive as to undermine the reasonableness of the assertions by persons involved in appellant’s court-martial either that they were not aware of such comments or that they did not regard the media reports as reflecting command policy, the Government demonstrated beyond a reasonable doubt that the few media stories in which these phrases appeared did not taint appellant’s court-martial with unlawful command influence
7. in light of the following circumstances, the Government adequately demonstrated that appellant’s trial was not tainted by the appearance of unlawful command influence: (1) the early action to transfer appellant to another jurisdiction in light of the potentially improper statements by the unit's commander; (2) the decision to compose the court-martial panel from persons outside the unit; (3) the order of the military judge shielding members from media stories about the investigation; (4) the wide variety of disposition decisions in related cases growing out of the investigation at the base, including dismissal of charges, nonjudicial punishment, administrative discharge, and referral to special as well as general courts-martial; (5) the extensive ventilation of the unlawful command influence allegations at trial through testimony, documentary evidence, briefs, arguments of counsel, and a detailed written decision by the military judge, all of which focused on the impact on subordinate commanders and panel members; and (6) the fact that the defense did not seek a change of venue due to the pretrial publicity or unlawful command influence, nor did the defense challenge any of the panel members on the basis of potential exposure to pretrial publicity or unlawful command influence

Miscellaneous Matters: Pretrial Publicity: Generally

1. members of the armed forces are entitled to have their cases adjudged by fair and impartial court-martial panels whose evaluation is based solely upon the evidence, and not upon prejudgment that may occur as a result of pretrial publicity

Miscellaneous Matters: Pretrial Publicity: Burdens

1. the defense may raise the issue of unfair pretrial publicity by demonstrating either presumed prejudice or actual prejudice; to establish presumed prejudice, the defense must show that the pretrial publicity (1) is prejudicial, (2) is inflammatory, and (3) has saturated the community; depending on the circumstances of the case, the potential for prejudice may be ameliorated through measures such as a continuance, change of venue, sequestration, and regulation of public comment by counsel; to establish actual prejudice, the defense must show that members of the court-martial panel had such fixed opinions that they could not judge impartially the guilt of the accused; without such a showing, evidence that the members had knowledge of highly significant information or other incriminating matters is insufficient
2. where appellant failed to show that the community was saturated with inflammatory prejudicial material, where relatively few of the articles directly referred to appellant, and where the members were ordered to avoid media coverage of trainee abuse issues, appellant failed to demonstrate presumed prejudice
3. where the military judge permitted counsel to conduct extensive individual voir dire of the court-martial panel prior to trial on the merits, where the examination of the members revealed that the members had encountered very little information about the trial or related matters, where appellant did not seek a change in venue on the basis of unfair pretrial publicity, and where appellant did not cite unfair pretrial publicity as the basis for challenging any of the members of the court-martial panel, appellant failed to demonstrate that he was the victim of actual unfair pretrial publicity