U.S. v. Gore, 60 M.J. 178

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. Article 62(b), UCMJ, states that in ruling on a government appeal, the court of criminal appeals may act only with respect to matters of law, notwithstanding Article 66(c), UCMJ; when a court is limited to reviewing matters of law, the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record; to give due deference to the trial bench, a determination of fact should not be disturbed unless it is unsupported by the evidence of record or was clearly erroneous
2. on matters of fact with respect to a Government appeal under Article 62, UCMJ, both the Court of Appeals for the Armed Forces and the court of criminal appeals are in the same position--bound by the military judge's factual determinations unless they are unsupported by the record or clearly erroneous; neither court has authority to find facts in addition to those found by the military judge

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. on matters of fact with respect to a Government appeal under Article 62, UCMJ, both the Court of Appeals for the Armed Forces and the court of criminal appeals are in the same position--bound by the military judge's factual determinations unless they are unsupported by the record or clearly erroneous; neither court has authority to find facts in addition to those found by the military judge

Trial Stages: Appeals: Remedies › Generally

1. we have long held that dismissal is a drastic remedy and courts must look to see whether alternative remedies are available; when an error can be rendered harmless, dismissal is not an appropriate remedy; dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings

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

1. where a military judge decides that command influence cannot be cured and dismisses the charges with prejudice, we consider whether the military judge erred in fashioning this remedy for the unlawful command influence that tainted the proceedings; we review the remedy ordered by the military judge for an abuse of discretion
2. an abuse of discretion means that when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors
3. we will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law; the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range

Miscellaneous Matters: Command Influence: Generally

1. Article 37(a), UCMJ, prohibits unlawful command influence by all persons subject to the UCMJ; unlawful command influence is recognized as the mortal enemy of military justice
2. the exercise of command influence tends to deprive servicemembers of their constitutional rights; if directed against prospective defense witnesses, it transgresses the accused’s right to have access to favorable evidence
3. the military judge is the last sentinel to protect the court-martial from unlawful command influence; once unlawful command influence is raised, it is incumbent on the military judge to act in the spirit of the UCMJ 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
4. the military judge did not abuse his discretion in dismissing all of the charges with prejudice as a remedy for the egregious unlawful command influence of the convening authority who ordered a chief petty officer not to testify in support of the accused during sentencing and who may have deterred others at the command from testifying on the accused’s behalf; dismissing the charges without prejudice and allowing for a re-referral would not have eradicated the unlawful command influence because it would not have removed the pool of prospective witnesses from that influence

Miscellaneous Matters: Command Influence: Burdens

1. once the issue of unlawful command influence is raised, the Government must prove beyond a reasonable doubt: (1) that the predicate facts do not exist; or (2) that the facts do not constitute unlawful command influence; or (3) that the unlawful command influence will not prejudice the proceedings or did not affect the findings and sentence