U.S. v. Douglas, 68 M.J. 349

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge can intervene and protect a court-martial from the effects of unlawful command influence by taking proactive, curative steps to remove the taint of unlawful command influence and ensure a fair trial; as a last resort, a military judge may consider dismissal when necessary to avoid prejudice against the accused; dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings; however, when an error can be rendered harmless, dismissal is not an appropriate remedy; dismissal is a drastic remedy and courts must look to see whether alternative remedies are available
2. while the military judge stands watch as the last sentinel in the military justice system, once unlawful command influence is raised pretrial or at trial, the responsibility to protect the military justice system against unlawful command influence is not one unilaterally thrust upon the shoulders of the military judge; rather, it is a shared responsibility; the military judge, having crafted a reasonable remedy, is not required, in the face of apparent satisfaction from the defense, to intuit possible objections for the defense and then raise them sua sponte

Military Justice Personnel: Military Judge: Discretion

1. after finding that the no-contact orders and negative behavior of the accused’s military supervisor discouraged witnesses from providing character statements for the accused and resulted in unlawful command influence, the military judge acted within her discretion in crafting a remedy aimed at ameliorating the effects of the supervisor’s actions rather than dismissing the charges; the military judge’s remedy was specifically tailored to removing the roadblocks to obtaining character statements and alleviating the harm in this case and included: (1) providing a continuance to enable trial and defense counsel to co-author a memorandum from the accused’s commanding officer; (2) making the memorandum available to the defense; (3) allowing the defense to decide on the memorandum’s use and to pursue such witnesses as it chose; and (4) strongly recommending that (a) the accused be removed from his supervisor’s supervision and assigned to another office selected by the accused’s commander, (b) the supervisor be issued an order from his commander to immediately cease and desist communications regarding the accused and the investigations, charges, and court-martial, and (c) the government immediately rescind both the cease and desist order and the order prohibiting the accused from contacting members of his unit

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

1. once unlawful command influence is raised at the trial level, a presumption of prejudice is created; to affirm in such a situation, an appellate court must be convinced beyond a reasonable doubt that the unlawful command influence had no prejudicial impact on the court-martial
2. in a case involving unlawful command influence, an appellate court reviews issues involving a military judge’s decision not to dismiss for abuse of discretion; under this standard, 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. an appellate court grants a military judge broad discretion in crafting a remedy to remove the taint of unlawful command influence, and it will not reverse so long as the decision remains within that range
4. when a military judge crafts a reasonable and tailored remedy to remove unlawful command influence, and if the record reflects that the remedy has been implemented fully and no further objections or requests were made by the defense, then rather than requiring the government to prove a negative, an appellate court would be satisfied that the presumptive prejudice had been eliminated; however, when the record fails to include evidence that key components of the remedy were implemented, the presumption of prejudice flowing from the unlawful command influence has not been overcome; the government must then find an alternative way to meet its burden

Trial Stages: Appeals: Waiver

1. the CAAF has not applied the doctrine of waiver where unlawful command influence is at issue

Miscellaneous Matters: Command Influence: Generally

1. once unlawful command influence is raised at the trial level, a presumption of prejudice is created; to affirm in such a situation, an appellate court must be convinced beyond a reasonable doubt that the unlawful command influence had no prejudicial impact on the court-martial
2. Article 37(a), UCMJ, prohibits unlawful command influence; this prohibition includes attempts to interfere with access to witnesses; dismissal of the charges is one alternative if unlawful command influence is found
3. a military judge can intervene and protect a court-martial from the effects of unlawful command influence by taking proactive, curative steps to remove the taint of unlawful command influence and ensure a fair trial; as a last resort, a military judge may consider dismissal when necessary to avoid prejudice against the accused; dismissal of charges is appropriate when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings; however, when an error can be rendered harmless, dismissal is not an appropriate remedy; dismissal is a drastic remedy and courts must look to see whether alternative remedies are available
4. after finding that the no-contact orders and negative behavior of the accused’s military supervisor discouraged witnesses from providing character statements for the accused and resulted in unlawful command influence, the military judge acted within her discretion in crafting a remedy aimed at ameliorating the effects of the supervisor’s actions rather than dismissing the charges; the military judge’s remedy was specifically tailored to removing the roadblocks to obtaining character statements and alleviating the harm in this case and included: (1) providing a continuance to enable trial and defense counsel to co-author a memorandum from the accused’s commanding officer; (2) making the memorandum available to the defense; (3) allowing the defense to decide on the memorandum’s use and to pursue such witnesses as it chose; and (4) strongly recommending that (a) the accused be removed from his supervisor’s supervision and assigned to another office selected by the accused’s commander, (b) the supervisor be issued an order from his commander to immediately cease and desist communications regarding the accused and the investigations, charges, and court-martial, and (c) the government immediately rescind both the cease and desist order and the order prohibiting the accused from contacting members of his unit
5. unlawful command influence is the mortal enemy of military justice; however, it is not the mortal enemy of the military justice system because of the number of cases in which such influence is at issue, but rather because of the exceptional harm it causes to the fairness and public perception of military justice when it does arise
6. while the military judge stands watch as the last sentinel in the military justice system, once unlawful command influence is raised pretrial or at trial, the responsibility to protect the military justice system against unlawful command influence is not one unilaterally thrust upon the shoulders of the military judge; rather, it is a shared responsibility; the military judge, having crafted a reasonable remedy, is not required, in the face of apparent satisfaction from the defense, to intuit possible objections for the defense and then raise them sua sponte
7. while the defense counsel, after a lengthy continuance to implement the military judge’s remedy for the unlawful command influence, had no further objections or motions and did not request additional time, the burden of proof was on the government, and the record did not itself reveal that all portions of the remedy crafted were implemented; thus, while the accused’s acquiescence and silence were factors to consider, factors that make this a close case on this record, given that the burden of proof was on the government, the CAAF could not be convinced beyond a reasonable doubt that the taint from the unlawful command influence did not prejudice the accused by depriving him of the benefit of testimony from character witnesses during the findings and sentencing portions of his court-martial, where the accused presented no favorable character testimony during his court-martial, the government had not shown that presentation of a good character defense was unfeasible, and the government had not met its burden of showing that the character evidence would have been completely ineffective; further, the record reveals that the accused maintained his innocence even after his conviction and that much of the evidence against him came solely from the victim’s own testimony
8. the CAAF has not applied the doctrine of waiver where unlawful command influence is at issue
9. when a military judge crafts a reasonable and tailored remedy to remove unlawful command influence, and if the record reflects that the remedy has been implemented fully and no further objections or requests were made by the defense, then rather than requiring the government to prove a negative, an appellate court would be satisfied that the presumptive prejudice had been eliminated; however, when the record fails to include evidence that key components of the remedy were implemented, the presumption of prejudice flowing from the unlawful command influence has not been overcome; the government must then find an alternative way to meet its burden

Miscellaneous Matters: Command Influence: Burdens

1. once unlawful command influence is raised at the trial level, a presumption of prejudice is created; to affirm in such a situation, an appellate court must be convinced beyond a reasonable doubt that the unlawful command influence had no prejudicial impact on the court-martial
2. while the defense counsel, after a lengthy continuance to implement the military judge’s remedy for the unlawful command influence, had no further objections or motions and did not request additional time, the burden of proof was on the government, and the record did not itself reveal that all portions of the remedy crafted were implemented; thus, while the accused’s acquiescence and silence were factors to consider, factors that make this a close case on this record, given that the burden of proof was on the government, the CAAF could not be convinced beyond a reasonable doubt that the taint from the unlawful command influence did not prejudice the accused by depriving him of the benefit of testimony from character witnesses during the findings and sentencing portions of his court-martial, where the accused presented no favorable character testimony during his court-martial, the government had not shown that presentation of a good character defense was unfeasible, and the government had not met its burden of showing that the character evidence would have been completely ineffective; further, the record reveals that the accused maintained his innocence even after his conviction and that much of the evidence against him came solely from the victim’s own testimony
3. when a military judge crafts a reasonable and tailored remedy to remove unlawful command influence, and if the record reflects that the remedy has been implemented fully and no further objections or requests were made by the defense, then rather than requiring the government to prove a negative, an appellate court would be satisfied that the presumptive prejudice had been eliminated; however, when the record fails to include evidence that key components of the remedy were implemented, the presumption of prejudice flowing from the unlawful command influence has not been overcome; the government must then find an alternative way to meet its burden