U.S. v. Harvey, 64 M.J. 13

First Principles: Constitutional Matters: Generally

1. a court-martial is a public trial

First Principles: Constitutional Matters: Due Process

1. four factors determine whether post-trial delay violates due process rights: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to a timely review; and (4) prejudice to the appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a primary duty of the military judge in a court-martial is to protect against unlawful command influence
2. when addressing command influence issues, the military judge’s duty is to allocate the burdens between the prosecution and the defense; in discharging his duty of allocating the burden, the military judge engages in a two-stage process to permit the parties to establish the factual predicate related to any issues of unlawful command influence; the military judge initially requires the defense to carry the burden of raising an unlawful command influence issue; this threshold showing must be more than mere command influence in the air or speculation; but because of the congressional prohibition against unlawful command influence and its invidious impact on the public perception of a fair trial, this threshold is low; the test is some evidence of 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; if the military judge concludes that the defense has raised the issue of unlawful command influence, the burden shifts to the government to show either that there was no unlawful command influence or that the unlawful command influence did not affect the proceedings
3. the military judge has affirmative responsibilities to avoid the appearance of evil in his courtroom and to foster public confidence in court-martial proceedings
4. a military judge has great discretion in fashioning a remedy to protect against unlawful command influence

Military Justice Personnel: Court Members: Generally

1. where the question of unlawful command influence involves court members, MRE 606(b) limits the government’s opportunity to establish that the unlawful command influence had no impact on the proceedings; 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; the rule has three exceptions to the first prohibition, one of which permits testimony about any matter or statement occurring during the deliberations when there is a question whether there was unlawful command influence; the exceptions, however, do not permit circumvention of the second prohibition (inquiry into the effect on a member); in light of MRE 606(b), there could only be an inquiry of the members regarding what, if anything, was said during deliberations about the commander’s presence in the courtroom and their relationship with him; no one could question the members, however, as to the impact of the convening authority’s presence in the courtroom on any member’s mind, emotions, or mental processes

Military Justice Personnel: Convening Authority: Generally

1. there is no rule that the convening authority cannot attend a court-martial; but the presence of the convening authority at a court-martial may raise issues

Military Justice Personnel: Convening Authority: Generally

1. before attending a court-martial, a convening authority should give prudent and careful consideration as to the impact one’s presence could have on both the proceedings and the perception of fairness of the court-martial; a convening authority is encouraged to initiate a dialogue with both the command staff judge advocate and the trial counsel before entering a courtroom; discussing this matter with these lawyers would permit them to advise the convening authority of both general and case specific issues that may be raised by the convening authority’s presence at the court-martial; it would also afford the trial counsel the opportunity to advise both the military judge and the trial defense counsel of the presence of the convening authority in advance, so that the matter can be discussed with the military judge and any issues litigated before the convening authority is present in court before the panel members

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

1. an evidentiary DuBay hearing is a method to develop facts necessary for appellate review; it is a well-accepted procedural tool for addressing a wide range of post-trial collateral issues

Trial Stages: Appeals: Remedies › Generally

1. dismissal is a drastic remedy and courts must look to see whether alternative remedies are available
2. dismissal of charges is permissible when necessary to avoid prejudice against the accused and the findings of fact of the military judge document the prejudice to the accused from the egregious error in the case
3. the appropriate remedy for the failure of a military judge to shift the burden to the government after the issue of unlawful command influence was raised by the presence of the convening authority in the courtroom during closing arguments on findings was to set aside the findings and sentence without prejudice, thereby permitting a rehearing, rather than remand the case for a DuBay hearing, where the error involved the fundamental fairness of the court-martial and where almost seven years had elapsed since the court-martial panel’s deliberations due to excessive and unreasonable post-trial delay
4. the appropriate remedy for a denial of speedy appellate review where a rehearing was authorized and there was presently no direct meaningful sentence relief that could be provided appellant was to afford appellant relief by limiting the sentence that may be approved by the convening authority should a rehearing result in a conviction and a new sentence

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

1. 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. an appellate court reviews de novo the issue whether the defense produced some evidence of 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
3. where a due process error is one of constitutional magnitude, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt

Miscellaneous Matters: Command Influence: Generally

1. unlawful command influence is prohibited under Article 37(a), UCMJ
2. the presence of the convening authority in the courtroom during closing arguments of counsel on findings, coupled with the facts that the convening authority was wearing his flight suit in a case implicating flight safety, that the members knew the identity of the convening authority, and that the senior member of the panel personally knew the convening authority and was a subordinate member of his command, were sufficient to raise the issue of unlawful command influence, and thus the military judge erred in not shifting the burden on the issue to the government

Miscellaneous Matters: Command Influence: Members

1. where the question of unlawful command influence involves court members, MRE 606(b) limits the government’s opportunity to establish that the unlawful command influence had no impact on the proceedings; 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; the rule has three exceptions to the first prohibition, one of which permits testimony about any matter or statement occurring during the deliberations when there is a question whether there was unlawful command influence; the exceptions, however, do not permit circumvention of the second prohibition (inquiry into the effect on a member); in light of MRE 606(b), there could only be an inquiry of the members regarding what, if anything, was said during deliberations about the commander’s presence in the courtroom and their relationship with him; no one could question the members, however, as to the impact of the convening authority’s presence in the courtroom on any member’s mind, emotions, or mental processes

Miscellaneous Matters: Command Influence: Burdens

1. when addressing command influence issues, the military judge’s duty is to allocate the burdens between the prosecution and the defense; in discharging his duty of allocating the burden, the military judge engages in a two-stage process to permit the parties to establish the factual predicate related to any issues of unlawful command influence; the military judge initially requires the defense to carry the burden of raising an unlawful command influence issue; this threshold showing must be more than mere command influence in the air or speculation; but because of the congressional prohibition against unlawful command influence and its invidious impact on the public perception of a fair trial, this threshold is low; the test is some evidence of 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; if the military judge concludes that the defense has raised the issue of unlawful command influence, the burden shifts to the government to show either that there was no unlawful command influence or that the unlawful command influence did not affect the proceedings
2. once the defense carries the burden of raising an unlawful command influence issue, 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
3. the law of unlawful command influence establishes a low threshold for the defense to present some evidence of unlawful command influence

Miscellaneous Matters: Speedy Trial: Post-Trial

1. four factors determine whether post-trial delay violates due process rights: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to a timely review; and (4) prejudice to the appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation
2. 2,031 days for a first-level appellate review by a service court of criminal appeals is facially unreasonable as it clearly is excessive and inordinate
3. in balancing the four factors, where an appellant has not shown prejudice under the fourth factor, an appellate court will find a due process violation only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system; in this case, the unexplained and unreasonably lengthy delay of 2,031 days for a first-level appellate review weighs heavily in appellant’s favor; on balance, appellant was denied her due process right to speedy review and appeal notwithstanding her being unable to establish specific prejudice under the fourth factor