U.S. v. Leahr, 73 M.J. 364

Military Justice Personnel: Military Judge: Conduct/Misconduct

1. during a trial on the merits, a military judge’s comments thanking a witness for his efforts to protect the alleged victim and asking defense counsel before findings whether a witness would be subject to recall as a sentencing witness did not present deep-seated favoritism or antagonism so as to deny appellant a fair trial; however, military judges should be careful not to make such comments

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

1. when challenging a military judge’s impartiality on appeal, the test is objective and considers whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions

Trial Stages: Pretrial: Charges and Specifications

1. the convening authority or a superior competent authority may for any reason cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced; charges which are withdrawn from a court-martial should be dismissed unless it is intended to refer them anew promptly or to forward them to another authority for disposition
2. when a commander dismisses charges, further disposition under RCM 306(c) of the offenses is not barred
3. in order for a withdrawn charge to be dismissed, RCM 604(a) contemplates that an additional affirmative action will be taken by the convening authority
4. charges are ordinarily dismissed by lining out and initialing the deleted specifications or otherwise recording that a specification is dismissed
5. when charges are dismissed, the RCMs contemplate that reinstitution of charges requires the command to start over; the charges must be re-preferred, investigated, and referred as though there were no previous charges or proceedings; in other words, once charges are dismissed, reinstitution of charges requires the command to start over at a new trial
6. under RCM 604(a), the convening authority may for any reason cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced; charges that have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawal was for an improper reason
7. a proper reason for withdrawal of charges is a legitimate command reason which does not unfairly prejudice an accused
8. withdrawal of charges for the purpose of judicial economy by trying all known charges in a single trial is proper where an accused was not unfairly prejudiced
9. ordinarily all known charges should be referred to a single court-martial
10. in this case, the convening authority withdrew the charges out of anticipation of the possibility that a new allegation would cause appellant to become the subject of a newly preferred additional charge and out of a desire for appellant to be tried on all charges at a single trial to best serve the interests of justice and promote judicial economy; this reasoning aligns with the proper reason of promoting judicial economy and referring all known charges to a single court-martial; consequently, the convening authority’s reasoning for the withdrawal and subsequent dismissal was proper; additionally, the withdrawal and dismissal did not unfairly prejudice appellant where the new charges, like the dismissed charges, were referred to a general court-martial, the charges were not referred to a new military judge, appellant did not lose the benefit of favorable rulings, appellant was not in confinement, and the delay did not harm appellant’s ability to present his defense at the second court-martial
11. under RCM 601(e)(2), while additional charges may be joined with other charges for a single trial at any time before arraignment, after arraignment of the accused upon charges, no additional charges may be referred to the same trial without consent of the accused

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

1. when challenging a military judge’s impartiality on appeal, the test is objective and considers whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions
2. the conclusion whether an accused received a speedy trial is a legal question that is reviewed de novo
3. an appellate court reviews interpretations of RCM provisions de novo

Miscellaneous Matters: Speedy Trial: Rule for Courts-Martial 707

1. under RCM 707, it is incumbent upon the government to arraign the accused within 120 days after the earlier of preferral of charges, the imposition of restraint, or entry on active duty; where charges are dismissed, a new 120-day time period under the rule will begin on the date of dismissal; if charges are merely withdrawn and not subsequently dismissed, however, the RCM 707 speedy-trial clock continues to run
2. in this case, the convening authority’s withdrawal and dismissal of charges, in order to join an additional charge, consonant with the preference for joinder of all known offenses at a single court-martial, constituted dismissal of the charges, resetting the speedy trial clock under RCM 707, rather than withdrawal; although conditions on appellant’s liberty remained in place and an additional charge was ready for preferral five days later, the convening authority’s “withdrawal and dismissal” document expressly stated that the charges were dismissed, and appellant was notified that the original charges were dismissed; thus, the convening authority withdrew the original charges, and took more than one additional affirmative action to dismiss them – the written document and the notice to appellant; taken together, these circumstances demonstrate that the convening authority intended to dismiss the charges after they were withdrawn; absent a situation where a convening authority’s express dismissal is either a subterfuge to vitiate an accused’s speedy trial rights, or for some other improper reason, a clear intent to dismiss will be given effect; moreover, the original Article 134, UCMJ, specifications, which failed to allege the terminal element, were defective under appellate case law; failing to include the terminal element in the specifications in this contested case warranted dismissal because such specifications were defective; accordingly, appellant’s right to a speedy trial under RCM 707 was not violated because appellant’s original charges were dismissed and appellant was brought to trial within the time parameters of RCM 707