U.S. v. Boyce, 76 M.J. 242

First Principles: Constitutional Matters: Due Process

1. an appellate court applies a harmless beyond a reasonable doubt standard for both actual and apparent unlawful command influence because in the military justice system both the right to a trial that is fair, and the right to a trial that is objectively seen to be fair, have constitutional dimensions sounding in due process

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

1. an appellate court reviews allegations of unlawful command influence de novo
2. an appellate court applies a harmless beyond a reasonable doubt standard for both actual and apparent unlawful command influence because in the military justice system both the right to a trial that is fair, and the right to a trial that is objectively seen to be fair, have constitutional dimensions sounding in due process

Miscellaneous Matters: Command Influence: Generally

1. unlawful command influence is the mortal enemy of military justice
2. (two types of unlawful command influence can arise in the military justice system: actual unlawful command influence and the appearance of unlawful command influence
3. actual unlawful command influence has commonly been recognized as occurring when there is an improper manipulation of the criminal justice process which negatively affects the fair handling and/or disposition of a case
4. unlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence; rather, the prejudice involved in the latter instance is the damage to the public’s perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused
5. in support of a claim of an appearance of unlawful command influence, it is sufficient for an accused to demonstrate: (1) facts, which if true, constitute unlawful command influence; and (2) that this unlawful command influence placed an intolerable strain on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
6. a determination that an appellant was not personally prejudiced by the unlawful command influence, or that the prejudice caused by the unlawful command influence was later cured, is a significant factor that must be given considerable weight when deciding whether the unlawful command influence placed an intolerable strain on the public’s perception of the military justice system; however, such a determination ultimately is not dispositive of the underlying issue of whether the public taint of an appearance of unlawful command influence still remains
7. in this case, where appellant alleged that the convening authority’s referral of charges was unlawfully influenced by a threat to his position and career by the Chief of Staff of the Air Force, he was not entitled to relief on the basis of actual unlawful command influence where even assuming an unrebutted showing of unlawful command influence, there was an insufficient basis to deduce that appellant personally suffered any prejudice: a convening authority merely applies a reasonable grounds standard in determining whether to refer charges to a general court-martial (which is quite a low standard); there were two witnesses — not just one — who alleged abuse by appellant; there was physical evidence corroborating the allegations against appellant; there was evidence that appellant had previously engaged in similar violence; the Article 32 investigating officer recommended referral of all sexual assault charges; and every subordinate commander and the SJA recommended referral of all charges against appellant
8. no showing of knowledge or intent on the part of government actors is required in order for an appellant to successfully demonstrate that an appearance of unlawful command influence arose in a specific case; in cases involving unlawful command influence, the key to the analysis is effect — not knowledge or intent
9. in this case, where appellant alleged that the convening authority’s referral of charges was unlawfully influenced by the Secretary of the Air Force and the Chief of Staff of the Air Force, he was entitled to relief on the basis of the appearance of unlawful command influence where an objective disinterested observer with knowledge of the following facts and circumstances would harbor a significant doubt about the fairness of the court-martial proceedings: at the Senate confirmation hearing for the Secretary of the Air Force, a senator commented on the convening authority’s prior decision to set aside the findings and sentence in a sexual assault case and stated that commanders needed to be held accountable for their handling of sexual assault charges; the Chief of Staff informed the convening authority on the same day that the convening authority received appellant’s referral packet that the Secretary had lost confidence in him and that he could either retire at a lower paygrade or wait for the Secretary to remove him from command; the convening authority was vulnerable to additional negative personnel actions by the Secretary at the time that he referred appellant’s charges, and members of the public would question whether the Secretary or the Chief of Staff inhibited the convening authority from exercising his authority in a truly and impartial manner; under the totality of the circumstances, appellant showed some evidence of unlawful command influence by the Secretary of the Air Force and/or the Chief of Staff of the Air Force regarding the referral of the case, and the government failed to meet its burden of proving beyond a reasonable doubt that the underlying facts did not exist or that these facts did not constitute unlawful command influence

Miscellaneous Matters: Command Influence: Burdens

1. when an appellant asserts that there was an appearance of unlawful command influence, he initially must show some evidence that unlawful command influence occurred; this burden on the defense is low, but the evidence presented must consist of more than mere allegation or speculation
2. once an appellant asserts that there was an appearance of unlawful command influence and presents some evidence to support the claim, the burden then shifts to the government to rebut the allegation; specifically, the government bears the burden of proving beyond a reasonable doubt that either the predicate facts proffered by the appellant do not exist, or the facts as presented do not constitute unlawful command influence; if the government meets its burden, the appellant’s claim of unlawful command influence will be deemed to be without merit and no further analysis will be conducted; if the government does not meet its burden of rebutting the allegation at this initial stage, then the government may next seek to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding; if the government meets its evidentiary burden at this stage of the analysis, then the appellant merits no relief on the grounds that there was an appearance of unlawful command influence; if the government does not meet its evidentiary burden, however, the court will fashion an appropriate remedy

Miscellaneous Matters: Judicial Review: Generally

1. federal courts have an independent interest in ensuring that legal proceedings appear fair to all who observe them