U.S. v. Proctor, 81 M.J. 250

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

1. an appellate court reviews allegations of unlawful command influence, including allegations of the appearance of unlawful command influence, de novo.
2. an appellate court accepts as true the military judge’s findings of fact on a motion to dismiss for unlawful command influence unless those findings are clearly erroneous

Miscellaneous Matters: Command Influence: Generally

1. Article 37(a), UCMJ, prohibits, in relevant part, any person subject to the UCMJ from attempting to coerce or, by any unauthorized means, influence the action of a court-martial or any member thereof, in reaching the findings or sentence in any case
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. unlike actual unlawful command influence, a meritorious claim of the appearance of unlawful command influence does not require prejudice to an accused; instead, the prejudice is what is done to the public’s perception of the fairness of the military justice system as a whole; a significant factor in determining whether the unlawful command influence created an intolerable strain on the public’s perception of the military justice system is whether the appellant was not personally prejudiced by the unlawful command influence, or that the prejudice caused by the unlawful command influence was later cured
4. in this case, appellant established some evidence of unlawful command influence where (1) appellant’s commanding officer held a commander’s call with his entire squadron a year before appellant’s court-martial but after he had knowledge of appellant’s misconduct, (2) his comments concerning an NCO problem mentioned not writing character letters on behalf of those airmen facing disciplinary problems, (3) his comments were interpreted by some airmen to discourage them from assisting in the defense of those airmen, and (4) appellant received no support during sentencing from any of the airmen in his squadron
5. despite there being some evidence of unlawful command influence in this case, any such influence did not place an intolerable strain upon the public’s perception of the military justice system and would not cause an objective, disinterested observer, fully informed of all the facts and circumstances, to harbor a significant doubt about the fairness of the proceeding where (1) the record includes no evidence that any airman refused to testify or write a character letter in support of appellant for sentencing, (2) the commander’s call was a regularly occurring event that had been scheduled months ahead of time, not a response to any of the events related to appellant’s misconduct, and the commander never mentioned appellant by name or specifically referenced any of his misconduct, (3) over a year passed between the commander’s call and the start of appellant’s court-martial, and during that time, the commander had permanently relocated to another duty station, and (4) there was no reason to believe anything said by the commander had an effect on appellant’s sentencing case because four people wrote character letters on appellant’s behalf, four witnesses testified on appellant’s behalf, and the court-martial panel gave appellant much of what his defense counsel asked for during sentencing

Miscellaneous Matters: Command Influence: Burdens

1. an accused who asserts there was an appearance of unlawful command influence bears the initial burden of showing some evidence that unlawful command influence occurred; although this is a low burden, the evidence presented by an appellant to establish his prima facie case must consist of more than mere allegation or speculation
2. if the accused presents some evidence of unlawful command influence, the burden shifts to the government to prove beyond a reasonable doubt that either: (a) the predicate facts proffered by the appellant do not exist, or (b) the facts as presented do not constitute unlawful command influence; if the government fails to rebut the accused’s factual showing, it may still prevail if it proves 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