U.S. v. Reed, 65 M.J. 487

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. in the course of addressing command influence issues, military judges must consider apparent as well as actual unlawful command influence

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. at trial, the burden of raising the issue of unlawful command influence rests with the defense; the defense must: (1) show facts which, if true, constitute unlawful command influence, and (2) 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 more than mere allegation or speculation; the defense is required to present some evidence of unlawful command influence
2. if the defense meets the burden of raising the issue, the burden shifts to the government; the government must (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; 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; whichever tactic the government chooses, the quantum of proof is beyond a reasonable doubt
3. in the course of addressing command influence issues, military judges must consider apparent as well as actual unlawful command influence

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Command influence

1. in the course of addressing command influence issues, appellate courts must consider apparent as well as actual unlawful command influence
2. where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that an appellate court reviews de novo

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

1. in the course of addressing command influence issues, appellate courts must consider apparent as well as actual unlawful command influence
2. where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that an appellate court reviews de novo
3. with respect to an appellant’s contention that a case was tainted by the appearance of unlawful command influence, an appellate court’s evaluation is highly case-specific; in addition to considering the specific words at issue in the context of the charged offenses, it also takes into account factors such as the means and scope of dissemination, remedial action within the command in general and with respect to potential court members in particular, the degree to which the record itself demonstrates that the defense has had a full opportunity to explore the issue, whether the government has been forthcoming in its response, and whether the military judge has taken any necessary corrective action

Miscellaneous Matters: Command Influence: Generally

1. at trial, the burden of raising the issue of unlawful command influence rests with the defense; the defense must: (1) show facts which, if true, constitute unlawful command influence, and (2) 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 more than mere allegation or speculation; the defense is required to present some evidence of unlawful command influence
2. if the defense meets the burden of raising the issue, the burden shifts to the government; the government must (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; 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; whichever tactic the government chooses, the quantum of proof is beyond a reasonable doubt
3. in the course of addressing command influence issues, military judges and appellate courts must consider apparent as well as actual unlawful command influence
4. where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that an appellate court reviews de novo
5. with respect to an appellant’s contention that a case was tainted by the appearance of unlawful command influence, an appellate court’s evaluation is highly case-specific; in addition to considering the specific words at issue in the context of the charged offenses, it also takes into account factors such as the means and scope of dissemination, remedial action within the command in general and with respect to potential court members in particular, the degree to which the record itself demonstrates that the defense has had a full opportunity to explore the issue, whether the government has been forthcoming in its response, and whether the military judge has taken any necessary corrective action
6. in this case, the government met its burden of demonstrating beyond a reasonable doubt that the case was not infected by actual unlawful command influence, where two panel members who had received an email from the convening authority indicating that he was uncompromising about discipline in the leaderships ranks with respect to BAH fraud, were fully questioned during voir dire with respect to whether it had an adverse impact on their ability to render an impartial judgment, the members’ answers demonstrated that they had little specific recollection of the content of the email, they did not perceive that there was a command policy governing disposition of BAH fraud cases, they did feel any pressure as a result of having received the email, and there is no evidence that they believed the command expected a certain result from the court-martial
7. in this case, the government met its burden of demonstrating beyond a reasonable doubt that the fairness of the court-martial proceedings was not tainted by the appearance of unlawful command influence, where after the convening authority sent an email indicating that he was uncompromising about discipline in the leaderships ranks with respect to BAH fraud, the convening authority took prompt remedial action in the form of a corrective email when informed of possible adverse implications of the initial email, where only a small portion of the initial email contained matters of concern, where the record indicated that only a few members of the command had a specific recollection of the details of the email, and where the record contained only isolated accounts of a negative command climate adverse to the defense, none of which impacted witnesses or panel members