U.S. v. Salyer, 72 M.J. 415

First Principles: Constitutional Matters: Due Process

1. Article 37, UCMJ, states that no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any member thereof; while statutory in form, the prohibition can also raise due process concerns, where for example unlawful influence undermines a defendant’s right to a fair trial or the opportunity to put on a defense

Military Justice Personnel: Military Judge: Generally

1. the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge shall perform the duties of judicial office impartially and fairly; toward this end, a military judge is required to affirmatively recuse himself, sua sponte, from a case where there is a ground for disqualification

Trial Stages: Merits: Trial Procedures › Generally

1. the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling

Trial Stages: Merits: Trial Procedures › Voir dire

1. the normative method for addressing potential issues of judicial disqualification is voir dire; RCM 902 provides the substantive framework, and RCM 802 provides a procedural vehicle; accessing a military judge’s official personnel file to verify rumors regarding his family is not a normative method for testing and validating the impartiality of a military judge; it is not sanctioned by the UCMJ

Trial Stages: Writs and Interlocutory Appeals: Generally

1. the normative method for challenging a military judge’s legal ruling is to seek an appeal of that ruling; this might be done on an interlocutory basis, and generally the appeal will be given precedence by an appellate court; the normative method for addressing a military judge’s substantive ruling is not to seek a military judge’s disqualification and get a new ruling from a replacement military judge; and, it is not to have the government communicate in an ex parte manner with the military judge’s judicial supervisor and express displeasure with the ruling

Trial Stages: Appeals: Remedies › Generally

1. in this case, where the government obtained the military judge’s disqualification by using its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias and where the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding, the appearance of unlawful influence required dismissal of the case with prejudice, rather than retrial; here, the unprofessional actions of the government improperly succeeded in getting the military judge to recuse himself from appellant’s court-martial; were a rehearing authorized, the government would obtain the result it sought to obtain through inappropriate means - a trial with a different military judge; thus, any remedy short of dismissal at this stage would effectively validate the government’s actions; in addition, a rehearing as a remedy would occur over two-and-a-half years after appellant’s original court-martial; appellant had a right to a timely trial before a military judge who had been properly detailed to hear the case, and through no fault of his own, appellant was denied this right as a result of the government’s inappropriate actions causing the disqualification of a military judge; finally, the actions at issue strike at the heart of what it means to have an independent military judiciary and indeed a credible military justice system

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

1. allegations of unlawful command influence are reviewed by an appellate court de novo
2. on appeal, the accused bears the initial burden of raising unlawful command influence; appellant must show: (1) facts, which if true, constitute unlawful command influence, (2) that the proceedings were unfair, and (3) that the unlawful command influence was the cause of the unfairness; thus, the initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence
3. once an issue of unlawful command influence is raised by some evidence, the burden shifts to the government to rebut an allegation of unlawful command influence by persuading the court beyond a reasonable doubt that (1) the predicate facts do not exist, (2) the facts do not constitute unlawful command influence, or (3) the unlawful command influence did not affect the findings or sentence
4. allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; 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 test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence arises where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
5. an appellate court’s review of unlawful influence in a given case is not limited to actual influence; an appellate court is concerned not only with eliminating actual unlawful influence, but also with eliminating even the appearance of unlawful command influence at courts-martial

Miscellaneous Matters: Command Influence: Generally

1. Article 37, UCMJ, states that no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any member thereof; while statutory in form, the prohibition can also raise due process concerns, where for example unlawful influence undermines a defendant’s right to a fair trial or the opportunity to put on a defense
2. allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; 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 test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence arises where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
3. where there is evidence in the record of an effort to unseat a military judge based on the trial counsel’s animosity toward the military judge, to secure a more favorable ruling, or to cause the assignment of an alternative military judge, where the presiding military judge is otherwise qualified to serve, an appearance of unlawful command influence is raised
4. in this case, the appearance of unlawful influence was raised because the government used its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias; further, the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding; an objective, disinterested observer, fully informed of these facts and circumstances, might well be left with the impression that the prosecution in a military trial has the power to manipulate which military judge presides in a given case depending on whether the military judge is viewed as favorable or unfavorable to the prosecution’s cause based on the government’s access to a military judge’s personnel file and through access to the military judge’s chain of command
5. in this case, where the government obtained the military judge’s disqualification by using its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias and where the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding, the government failed to demonstrate beyond a reasonable doubt that the appearance of unlawful influence did not affect the findings or the sentence where the new military judge issued a more favorable ruling on privilege and the same persons who had accessed the military judge’s official file and made ex parte contact with the first military judge’s supervisor were not barred from further participation in the case
6. in this case, where the government obtained the military judge’s disqualification by using its custody of the military judge’s official personnel file to search that personnel file to find personal family information for the purpose of challenging the military judge for bias and where the government expressed its displeasure with the military judge’s rulings not only on the record but in an ex parte manner to the military judge’s judicial supervisor during the pendency of the court-martial and while the military judge was still presiding, the appearance of unlawful influence required dismissal of the case with prejudice, rather than retrial; here, the unprofessional actions of the government improperly succeeded in getting the military judge to recuse himself from appellant’s court-martial; were a rehearing authorized, the government would obtain the result it sought to obtain through inappropriate means - a trial with a different military judge; thus, any remedy short of dismissal at this stage would effectively validate the government’s actions; in addition, a rehearing as a remedy would occur over two-and-a-half years after appellant’s original court-martial; appellant had a right to a timely trial before a military judge who had been properly detailed to hear the case, and through no fault of his own, appellant was denied this right as a result of the government’s inappropriate actions causing the disqualification of a military judge; finally, the actions at issue strike at the heart of what it means to have an independent military judiciary and indeed a credible military justice system

Miscellaneous Matters: Command Influence: Burdens

1. allegations of unlawful command influence are reviewed by an appellate court de novo
2. on appeal, the accused bears the initial burden of raising unlawful command influence; appellant must show: (1) facts, which if true, constitute unlawful command influence, (2) that the proceedings were unfair, and (3) that the unlawful command influence was the cause of the unfairness; thus, the initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence
3. once an issue of unlawful command influence is raised by some evidence, the burden shifts to the government to rebut an allegation of unlawful command influence by persuading the court beyond a reasonable doubt that (1) the predicate facts do not exist, (2) the facts do not constitute unlawful command influence, or (3) the unlawful command influence did not affect the findings or sentence
4. allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; 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 test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence arises where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding