U.S. v. Horne, 82 M.J. 283

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

1. an appellate court must accept a military judge’s findings of fact unless the findings are clearly erroneous; a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the appellate court on the entire evidence is left with the definite and firm conviction that a mistake has been committed
2. an appellate court reviews de novo the legal question of whether the facts establish apparent unlawful command influence
3. to make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting 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; once the accused meets the some evidence threshold, 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 cannot succeed at this step, it must 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
4. in applying the apparent unlawful command influence doctrine, an appellate court does not require the parties actually to produce credible evidence that any substantial segment of the general population suffered any loss of confidence in the military justice system; instead, the court simply assesses the aggravating and mitigating facts and circumstances and then decides, in its own estimation, whether the government’s conduct placed an intolerable strain upon the public’s perception of the military justice system
5. an appellate court must consider all the facts and circumstances in determining whether apparent unlawful command influence occurred and whether an appellant is entitled to relief
6. an appellate court can find clear error only when there is no evidence to support a finding by the military judge or when, upon reviewing all the evidence, it is left with the definite and firm conviction that a mistake has been committed

Miscellaneous Matters: Command Influence: Generally

1. Article 37, UCMJ (2012) prohibits both actual and apparent unlawful command influence
2. to make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting 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; once the accused meets the some evidence threshold, 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 cannot succeed at this step, it must 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
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; but that does not mean that prejudice to the accused is irrelevant; 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 applying the apparent unlawful command influence doctrine, an appellate court does not require the parties actually to produce credible evidence that any substantial segment of the general population suffered any loss of confidence in the military justice system; instead, the court simply assesses the aggravating and mitigating facts and circumstances and then decides, in its own estimation, whether the government’s conduct placed an intolerable strain upon the public’s perception of the military justice system
5. while in this case appellant made a prima facie case of apparent command influence, the government proved beyond a reasonable doubt that any such influence did not place an intolerable strain of the public’s perception of the military justice system where although the efforts of trial counsel and the special victim’s counsel to discourage law enforcement agents from interviewing the victim’s husband, an outcry witness, were unwise and inadvisable, and trial counsel, as a judge advocate, should have known better than to discourage a law enforcement investigation into potentially exculpatory evidence, the full litigation of appellant’s allegations before trial reflected well on the military justice system, as the litigation showed that the military judge realized the importance of resolving the matter before trial, all the relevant parties testified about what happened, and the release of the original trial counsel and original service victim’s counsel was a significant ameliorative measure; furthermore, the trial counsel did not have an intent to gain an advantage or an improper motive, and the actions of the trial counsel and the special victim’s counsel did not cause personal prejudice where although the law enforcement investigation was initially delayed, ultimately investigators did interview the victim’s husband
6. 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
7. the lack of personal prejudice is a significant factor in determining whether the unlawful command influence created an intolerable strain on the public’s perception of the military justice system
8. neither unlawful command influence nor the appearance of unlawful command influence should occur in the military justice system; however, when it occurs, the government may take immediate steps to reduce prejudice to the accused and to ameliorate the situation; although taking ameliorative efforts is not always necessary for proving beyond a reasonable doubt that unlawful command influence did not place an intolerable strain upon the public’s perception, such efforts may reduce the prejudice to the military justice system