U.S. v. Lewis, 63 M.J. 405

Military Justice Personnel: Military Judge: Generally

1. a military judge shall perform the duties of judicial office impartially and fairly
2. both the accused and the government are permitted to question the military judge and to present evidence regarding a possible ground for disqualification; should grounds arise, the military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned

Military Justice Personnel: Military Judge: Qualifications and Appointment of

1. authority to detail military judges has been delegated to service secretaries; the Secretary of the Navy has further delegated that authority to the Judge Advocate General who has prescribed that military judges will be detailed by and from a standing judiciary; in addition, military judges of general courts-martial are designated by and directly responsible to the Judge Advocate General of the service; neither the government nor the defense at a court-martial is vested with the power to designate, detail, or select the military judge; conversely, neither party can usurp the authority of the service secretaries or Judge Advocates General by removing or unseating properly certified and detailed military judges

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. to find that the appearance of command influence has been ameliorated and made harmless beyond a reasonable doubt, the government must convince an appellate court that the disinterested public would now believe the accused received a trial free from the effects of unlawful command influence
2. the appearance of unlawful command influence created by the orchestrated efforts of the trial counsel and staff judge advocate to force the recusal of the military judge was not cleansed by the detailing of a new military judge from another circuit or by that judge’s remedial action which included the disqualification of the SJA, the barring of the SJA from sitting in the courtroom, and the appointment of a new convening authority; the government wanted to ensure that a given military judge, properly detailed and otherwise qualified, would not sit on the accused’s case; in the end, the government achieved its goal through unlawful command influence; to this point, from an objective standpoint, the government has accomplished its desired end and suffered no detriment or sanction for its actions

Trial Stages: Appeals: Law of the Case

1. where neither party appeals a ruling of the court below, that ruling will normally be regarded as law of the case and binding upon the parties
2. the law of the case doctrine is a matter of discretionary appellate policy and does not prohibit a higher appellate court from reviewing the ruling of the court below
3. the lower court’s determination that there was unlawful command influence was the law of this case, and a higher appellate court will not review that determination where the government did not carry its burden of establishing that the ruling of lower court was clearly erroneous or that adhering to its ruling would create a manifest injustice

Trial Stages: Appeals: Remedies › Generally

1. dismissal is a drastic remedy and courts must look to see whether alternative remedies are available; dismissal of charges with prejudice, however, is an appropriate remedy where the error cannot be rendered harmless
2. the appropriate remedy to cure the actual and apparent unlawful command influence arising from the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge is the drastic one of reversing the decision of the lower court, setting aside the findings and sentence, and dismissing the charges with prejudice; this is the only remedy to cure the unlawful command influence and ensure the public perception of fairness in the military justice system

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

1. under the law of the case doctrine, a higher appellate court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it; that standard is difficult to achieve: a finding of manifest injustice requires a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong
2. as a general matter, the defense has the initial burden of raising the issue of unlawful command influence; on appeal, the defense meets its burden by showing facts which, if true, constitute unlawful command influence; that the proceedings were unfair; and that unlawful command influence was the cause of the unfairness
3. once the issue of unlawful command influence has been raised, the burden shifts to the government to demonstrate beyond a reasonable doubt either that there was no unlawful command influence or that the proceedings were untainted; this burden is high because command influence tends to deprive servicemembers of their constitutional rights
4. an appellate court reviews de novo the question of whether the government has met its burden of demonstrating, beyond a reasonable doubt, that the proceedings were untainted by unlawful command influence; this review must necessarily consider both whether actual command influence was cleansed from the proceedings as well as whether any perceived unlawful command influence has been eradicated
5. the government did not meet its burden of demonstrating beyond a reasonable doubt that the court-martial was free from the effects of actual unlawful command influence arising from the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge; although the successor military judge directed that the SJA be disqualified, that the SJA be barred from sitting in the courtroom, and that there be a new convening authority, these actions fell short of removing doubt about the impact of actual command influence where the SJA’s instrument in the courtroom, the trial counsel, remained an active member of the prosecution despite participating fully in the unlawful command influence
6. review of the command influence in a case is not limited to actual unlawful influence and its effect on a trial; Congress and appellate courts are concerned not only with eliminating actual unlawful command influence, but also with eliminating even the appearance of unlawful command influence at courts-martial; disposition of an issue of unlawful command influence falls short if it fails to take into consideration the appearance of unlawful command influence
7. whether the conduct of the government created an appearance of unlawful command influence is determined objectively; even if there was 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; the objective test for the appearance of unlawful command influence is similar to the tests appellate courts apply in reviewing questions of implied bias on the part of court members or in reviewing challenges to military judges for an appearance of conflict of interest; an appellate court focuses upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; thus, the appearance of unlawful command influence will exist where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
8. the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge gave rise to the appearance of unlawful command influence where a reasonable observer would have significant doubt about the fairness of the court-martial in light of the government’s conduct with respect to the military judge

Miscellaneous Matters: Command Influence: Generally

1. unlawful command influence is the mortal enemy of military justice; where it is found to exist, judicial authorities must take those steps necessary to preserve both the actual and apparent fairness of the criminal proceeding; the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial
2. 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; this call to maintain the public’s confidence that military justice is free from unlawful command influence follows from the fact that even the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial; thus, disposition of an issue of unlawful command influence falls short if it fails to take into consideration the appearance of unlawful command influence at courts-martial

Miscellaneous Matters: Command Influence: Burdens

1. as a general matter, the defense has the initial burden of raising the issue of unlawful command influence; at trial, the defense meets its burden by showing 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
2. once the issue of unlawful command influence has been raised, the burden shifts to the government to demonstrate beyond a reasonable doubt either that there was no unlawful command influence or that the proceedings were untainted; this burden is high because command influence tends to deprive servicemembers of their constitutional rights