U.S. v. Barry, 78 M.J. 70

Military Justice Personnel: Convening Authority: Generally

1. a successor convening authority should be guided by the original convening authority’s intent

Military Justice Personnel: Convening Authority: Action

1. in the absence of contrary evidence, a convening authority approves the findings by approving the sentence
2. a successor convening authority should be guided by the original convening authority’s intent

Trial Stages: Initial Review: Action

1. in the absence of contrary evidence, a convening authority approves the findings by approving the sentence

Trial Stages: Appeals: Remedies › Generally

1. dismissal is a drastic remedy and courts must look to see whether alternative remedies are available
2. the dismissal of charges is warranted when an accused would be prejudiced or no useful purpose would be served by continuing the proceedings
3. dismissal of charges with prejudice is an appropriate remedy where the error cannot be rendered harmless
4. in this case, where the DJAG exerted unlawful influence over the convening authority, the error cannot be rendered harmless and no useful purpose would be served by continuing the proceedings; accordingly, dismissal is the appropriate remedy where it was clear that appellant would have received some form of clemency, but the convening authority was less than clear as to what exact action he would have taken absent the unlawful influence; it would be inappropriate to subject appellant to a new convening authority’s action or rehearing, particularly as to do so would only serve to lengthen a protracted litigation that has already reached its natural conclusion; nothing short of dismissal with prejudice will provide meaningful relief; the nature of the unlawful conduct in this case, combined with the unavailability of any other remedy that will eradicate the unlawful influence and ensure the public perception of fairness in the military justice system, compel this result
5. remedy for unlawful influence must serve to protect the court-martial process and foster public confidence in the fairness of the military justice system

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

1. an appellate court reviews questions of statutory construction de novo
2. an appellate court reviews an allegation of unlawful influence de novo, assessing findings of fact that inform this legal question under a clearly erroneous standard; in such cases, where a military judge made detailed findings of fact and these findings are clearly supported by the record, an appellate court will adopt them for its analysis

Miscellaneous Matters: Command Influence: Generally

1. Article 37(a), UCMJ, prohibits unlawful influence by all persons subject to the UCMJ
2. a plain reading of Article 2, UCMJ, and Article 37, UCMJ, together makes clear that a DJAG, just like any other military member, is capable of committing unlawful influence; and this is so whether or not he or she acts with the mantle of command authority
3. the plain language of the unlawful influence article, Article 37, UCMJ, does not require one to operate with the imprimatur of command; a mantle of command authority may be a relevant factor for determining whether there is a violation of Article 37, UCMJ
4. unlawful command influence is the mortal enemy of military justice
5. it is fundamental for a military court to protect court-martial processes from improper command influence and to prevent interference from non-command sources as well in order to foster public confidence in the actual and apparent fairness of the military system of justice
6. actual unlawful influence occurs when there is an improper manipulation of the criminal justice process which negatively affects the fair handling and/or disposition of a case
7. improper manipulation of the criminal justice process, even if effectuated unintentionally, will not be countenanced; the plain language of Article 37(a), UCMJ, does not require intentional action
8. Article 37(a), UCMJ, clearly provides that no person subject to the UCMJ may attempt to coerce or, by any unauthorized means, influence the action of any convening, approving, or reviewing authority with respect to his judicial acts; ‘attempt to coerce’ is a separate form of violation than ‘by any unauthorized means, influence’; here the syntax involves something other than an unbroken series of verbs; instead, an adverbial clause — ‘by any unauthorized means’ — interrupts the sequence of verbs, and is preceded by the coordinating conjunction ‘or’; under such circumstances, it is more appropriate to treat ‘attempt to’ as a modifier only as to the nearest reasonable verb — in this case, ‘coerce’; as such, an ‘attempt to coerce’ necessarily requires intent, whereas influencing an action via unauthorized means violates the statute, regardless of intent
9. in this case, where the impact of the DJAG’s unauthorized guidance on the convening authority’s action was undeniable, actual unlawful influence tainted appellant’s case
10. in this case, where the DJAG exerted unlawful influence over the convening authority, the error cannot be rendered harmless and no useful purpose would be served by continuing the proceedings; accordingly, dismissal is the appropriate remedy where it was clear that appellant would have received some form of clemency, but the convening authority was less than clear as to what exact action he would have taken absent the unlawful influence; it would be inappropriate to subject appellant to a new convening authority’s action or rehearing, particularly as to do so would only serve to lengthen a protracted litigation that has already reached its natural conclusion; nothing short of dismissal with prejudice will provide meaningful relief; the nature of the unlawful conduct in this case, combined with the unavailability of any other remedy that will eradicate the unlawful influence and ensure the public perception of fairness in the military justice system, compel this result
11. remedy for unlawful influence must serve to protect the court-martial process and foster public confidence in the fairness of the military justice system

Miscellaneous Matters: Command Influence: Burdens

1. appellant bears the initial burden of raising an issue of unlawful influence
2. in order to succeed on appeal with respect to the issue of unlawful influence, appellant must establish: (1) facts, which if true, constitute unlawful influence; (2) unfairness in the court-martial proceedings (i.e., prejudice to appellant); and (3) that the unlawful influence caused that unfairness; while appellant’s initial burden is low, it requires more than mere allegation or speculation; instead, appellant must show some evidence in order to sufficiently raise the issue
3. once appellant meets his initial burden of raising an issue of unlawful influence, the burden shifts to the government to rebut the allegation by persuading the court beyond a reasonable doubt that: (1) the predicate facts do not exist; (2) the facts do not constitute unlawful influence; or (3) the unlawful influence did not affect the findings or sentence
4. in this case, appellant met his initial burden by successfully showing some evidence of facts which constitute unlawful influence on the part of the DJAG based on a conversation that the DJAG had with the convening authority in which he left the convening authority with the impression that not affirming the findings and sentence in appellant’s case would put a target on the convening authority’s back and on a later conversation in which the DJAG left the impression on the convening authority that approving the findings and sentence in an action that detailed his strong concerns was the best he could do in appellant’s case
5. in this case where appellant met his initial burden of raising the issue of unlawful influence, the government failed to rebut the allegation beyond a reasonable doubt where the record clearly demonstrated that, but for external pressures including, but not limited to, the DJAG’s improper advice, the convening authority would have taken different action in appellant’s case

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. in the absence of some other indication, a modifier in a statute typically applies to an entire series

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. Congress is presumed to know the law, and it knows how to change the law if it so desires