UNITED STATES, Appellee
v.
Jemima HARVEY, Lance Corporal
U.S. Marine Corps, Appellant
No. 04-0801
Crim. App. No. 200001040
United States Court of Appeals for the Armed Forces
Argued October 11, 2005
Decided September 22, 2006
GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON and ERDMANN, JJ., joined. CRAWFORD, J., and BAKER, J.,
each filed a separate dissenting opinion.
Counsel
For Appellant: Captain Peter H. Griesch, USMC (argued);
Lieutenant Colin A. Kisor, JAGC, USNR, and Major Charles R.
Zelnis, USMC (on brief).
For Appellee: Lieutenant Craig A. Poulson, JAGC, USNR (argued);
Lieutenant Colonel W. K. Lietzau, USMC, and Commander Charles N.
Purnell II, JAGC, USN (on brief).
Military Judge: J. F. Havranek
This opinion is subject to revision before final publication.
United States v. Harvey, No. 04-0801/MC
Chief Judge GIERKE delivered the opinion of the Court.
This Court has repeatedly reaffirmed that the military
judge is the “last sentinel” in the trial process to protect a
court-martial from unlawful command influence.1 Here, the
primary issue is whether the military judge properly performed
his sentinel duties when confronted with some unusual
circumstances surrounding the convening authority being present
in the courtroom during a portion of the court-martial. We hold
that these trial developments raised the issue of unlawful
command influence. The military judge failed to inquire
adequately into this issue and failed to place the appropriate
burden on the Government to rebut the existence of the command
influence or to establish that it did not prejudice the
proceedings. Therefore, the military judge erred in failing to
perform his sentinel duties. For the reasons stated below, we
reverse the decision of the lower court.
At the outset we note that we granted review on three
issues.2 Here, we focus on Issue I (the unlawful command
1
United States v. Gore, 60 M.J. 178, 186 (C.A.A.F. 2004); United
States v. Biagase, 50 M.J. 143, 152 (C.A.A.F. 1999); United
States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998).
2
This Court granted review on Issue I and Issue II and specified
Issue III as follows:
I. WHETHER THE LOWER COURT ERRED IN AFFIRMING THE
MILITARY JUDGE’S DENIAL OF A MISTRIAL, WHEN THE
MILITARY JUDGE FAILED TO INQUIRE INTO THE
CIRCUMSTANCES OF THE CONVENING AUTHORITY’S PRESENCE AT
TRIAL OR TO REQUIRE THE GOVERNMENT TO DISPROVE THE
2
United States v. Harvey, No. 04-0801/MC
influence issue) and also address Issue II (denial of speedy
appellate review). Appellant’s claim as to Issue II is
meritorious, thereby entitling her to additional relief. But
the merits of Issue II also impacts the remedy we fashion to
address the error relating to Issue I. Because of the error
relating to unlawful command influence and the remedy we find
appropriate, it is not necessary for us to address Issue III
(improper sentence reassessment).
I. BACKGROUND
The operative facts are not in dispute and are presented
accurately by the lower court:
The convening authority at the time the appellant’s
court-martial was convened and the charges referred was
Major P.J. Loughlin, United States Marine Corps, Commanding
Officer of Headquarters and Headquarters Squadron (H&HS),
Marine Corps Air Station, Yuma, Arizona. He signed the
convening order, detailing five officer members. He also
signed the amendment to the convening order detailing four
enlisted members and removing an officer member. After
EXISTENCE OF UNLAWFUL COMMAND INFLUENCE ONCE THAT
ISSUE WAS RAISED.
II. WHETHER A DELAY OF 2031 DAYS BETWEEN SENTENCING AND
CONCLUSION OF REVIEW UNDER ARTICLE 66, UCMJ, COMPORTS
WITH DUE PROCESS.
III. WHETHER THE SENTENCE WAS PROPERLY REASSESSED AFTER THE
CONVENING AUTHORITY DISAPPROVED A GUILTY FINDING BUT
NEITHER THE STAFF JUDGE ADVOCATE’S RECOMMENDATION NOR
THE CONVENING AUTHORITY’S ACTION REFLECTS COGNIZANCE
OF THE SENTENCE REASSESSMENT CRITERIA UNDER UNITED
STATES V. SALES, 22 M.J. 305 (C.M.A. 1986), AND WHERE
THE LOWER COURT FAILED TO REVIEW THE CONVENING
AUTHORITY’S REASSESSMENT UNDER THE SALES CRITERIA.
United States v. Harvey, 61 M.J. 50 (C.A.A.F. 2005).
3
United States v. Harvey, No. 04-0801/MC
challenges, one officer and three enlisted members remained
to hear the case. By the time trial on the merits
commenced before those four members, Lieutenant Colonel
M.L. Saunders had succeeded Major Loughlin in command and
Major Loughlin assumed duties as Executive Officer [XO].
After the trial counsel finished his closing argument on
findings, there was a brief recess before the military
judge gave instructions to the members. After the recess,
in an Article 39a, UCMJ, session, the following discussion
ensued:
MJ: The court will come to order. All parties
present when the court recessed are again present.
The members are absent.
During the last recess -- I guess I should say during
the closing arguments of counsel the courtroom was
pretty full of spectators. I saw an individual come
in, sit down in the courtroom. During the last recess
I just said to the trial counsel, who’s the man in the
flight suit? He told me it was the XO of the Squadron
which happens to be our convening authority in this
case, the individual [who] actually picked the
members, referred the case to trial, sat in on closing
arguments. I want to make that part of the record.
Defense, do you want to be heard on this?
DC: Yes, sir, we do. We’d like to ask for a mistrial
at this point because of his presence. It was obvious
-- I didn’t know he was there at the time. It with
[sic] obvious during the whole closing argument that
the panel was looking over our shoulder.
MJ: I didn’t see that.
DC: We believe Captain Cisneros, the President, is
intimately familiar with Major Loughlin.
MJ: Well, she may be the only individual that knows
him because the other enlisted members are not from
that Squadron and I have no idea whether they even
recognized or knew who he was. I can tell you that
I’m about as far away from him as they were and I
couldn’t even tell whether he was an officer or not
because he was in a flight suit. I couldn’t see any
rank insignia on his name patch.
4
United States v. Harvey, No. 04-0801/MC
DC: But Captain Cisneros knows him.
MJ: Oh, I know she does.
DC: And it’s a small base. Everybody knows the XO of
H&HS. It’s our opinion that he’s going to influence
their deliberation and influence the weight. He heard
all the evidence, you know, and they’re going to be
influenced by that fact.
MJ: Okay. Your motion for a mistrial is denied.
But, if you desire, I will give a limiting
instruction, but that’s a choice you’re going to have
to make on the limiting instruction in whether you
want to highlight it to the members, specifically if
the enlisted members did not know who he was, or
whether you want me to give them a limiting
instruction telling them that they should not consider
it whatsoever, the fact that the convening authority
sat in for the closing arguments.
DC: No, we’re not going to highlight it at this time.
MJ: Do you have any other remedy that you would
desire?
DC: There’s no other remedy that would be effective
other than a mistrial, but that’s not an option.
MJ: Well, you’re not getting a mistrial so is there
anything else you want?
DC: Nothing else we can ask for.
MJ: Then I’ll be glad to give a limiting instruction.
DC: No, sir.
MJ: Do you desire to voir dire any of the members?
DC: No, sir.
MJ: Anything else we need to take up?
TC: No, sir.
MJ: Staff Sergeant Perez, let’s call the members in.
5
United States v. Harvey, No. 04-0801/MC
The Article 39(a) session terminated.3
Following the session pursuant to Article 39(a), Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 839(a) (2000), the
military judge, the trial counsel, and the trial defense counsel
took no further action to address the issue of unlawful command
influence. The court-martial eventually convicted Appellant on
charges of conspiracy, false official statement, wrongful use of
lysergic acid diethylamide (LSD), methamphetamine, and cocaine,
wrongful inhalation of “Glade” aerosol with the intent to become
intoxicated, wrongful possession of methamphetamine and cocaine,
and communication of a threat (two specifications).4
On appeal Appellant asserts that the military judge failed
to conduct further inquiry to establish what impact, if any, the
convening authority’s presence had on the proceedings and erred
in summarily denying the defense’s motion for mistrial. More
specifically, Appellant makes four points to support this
argument: (1) the facts surrounding the convening authority’s
presence in the courtroom satisfy the low threshold in Biagase5
of demonstrating some evidence of unlawful command influence;
3
United States v. Harvey, 60 M.J. 611, 613-14 (N-M. Ct. Crim.
App. 2004).
4
These offenses are punishable under Articles 81, 107, 112a, and
134, UCMJ, 10 U.S.C. §§ 881, 907, 912a, 934 (2000),
respectively. Appellant was sentenced to confinement for sixty
days, reduction to pay grade E-1, forfeiture of $639.00 pay per
month for two months, and a bad-conduct discharge. The
convening authority disapproved the finding of guilty of
wrongful use of LSD and approved the sentence as adjudged.
5
50 M.J. at 150.
6
United States v. Harvey, No. 04-0801/MC
(2) the military judge failed to conduct further inquiry to
establish what impact the convening authority’s presence had on
the proceedings; (3) the military judge erred in failing to
shift the burden to the Government to disprove the existence of
unlawful command influence; and (4) the Government did not
adequately rebut the presumption of unlawful command influence
beyond a reasonable doubt.
The Government reply is simply that the military judge did
not abuse his discretion in denying the defense motion for a
mistrial. The Government asserts that the mere presence of the
convening authority at the closing argument does not raise the
issue of unlawful command influence as there was no evidence
that his presence had any effect on the members’ deliberations.
Indeed, the Government argues that “the presence of the
convening authority should be presumed to have a salutary
effect” because it “demonstrates to all participants and the
command the convening authority’s interest” in observing
military justice in action.
II. DISCUSSION
A. Issue I: Alleged unlawful command influence
1. The analytical framework for addressing the issue of
unlawful command influence
Recently in Gore, we discussed the statutory prohibition
against unlawful command influence and explained the pivotal
7
United States v. Harvey, No. 04-0801/MC
role of this Court in protecting against unlawful command
influence, stating:
Unlawful command influence is prohibited under Article
37(a), UCMJ, 10 U.S.C. § 837(a) (2000), which states,
No authority convening a general, special, or summary
court-martial, nor any other commanding officer, may
censure, reprimand, or admonish the court or any
member, military judge, or counsel thereof, with
respect to the findings or sentence adjudged by the
court, or with respect to any other exercises of its
or his functions in the conduct of the proceedings.
No person subject to this chapter may attempt to
coerce or, by any unauthorized means, influence the
action of a court-martial or any other military
tribunal or any member thereof, in reaching the
findings or sentence in any case. . . .
The importance of this prohibition is reflected in our
observation, that “a prime motivation for establishing a
civilian Court of Military Appeals was to erect a further
bulwark against impermissible command influence.” United
States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).6
Our responsibility to protect the military justice system
against unlawful command influence comes from our statutory
mandate to provide oversight of the military justice system.7 We
share this responsibility with military commanders, staff judge
advocates, military judges, and others involved in the
administration of military justice. Fulfilling this
responsibility is fundamental to fostering public confidence in
the actual and apparent fairness of our system of justice. It
6
60 M.J. at 185 (ellipsis in original).
7
See Articles 37(a) and 98, UCMJ, 10 U.S.C. §§ 837(a), 898
(2000); see also Noyd v. Bond, 395 U.S. 683, 695 (1969)
(recognizing that it was in this Court that “Congress has
confided primary responsibility for the supervision of military
justice in this country and abroad”).
8
United States v. Harvey, No. 04-0801/MC
is the experience of this Court that unlawful command influence
is not a virus that a one-time judicial remedy, treatment, or
inoculation can irrevocably extinguish from our military justice
community.8 On the contrary, because the inherent power and
influence of command are necessary and omnipresent facets of
military life, everyone involved in both unit command and in
military justice must exercise constant vigilance to protect
against command influence becoming unlawful.
Illustrative of this shared responsibility to protect
against unlawful command influence, in Biagase,9 we explicitly
stated that a primary duty of the military judge in a court-
martial is to protect against unlawful command influence.
Indeed, Biagase underscored the role of the military judge as
the “last sentinel,” an essential guard at the trial level, to
protect against unlawful command influence.10
Biagase reaffirms the unique and important duties that
military judges have when addressing command influence issues.
We noted in Biagase the utility of the military judge making
detailed findings of fact. But the focus of Biagase is on the
8
See United States v. Stombaugh, 40 M.J. 208, 211 (C.M.A. 1994)
(detailing “many instances of unlawful command influence” that
this Court has condemned).
9
50 M.J. at 152.
10
In Biagase, we reaffirmed what we first stated in Rivers, 49
M.J. at 443, that the military judge is the “‘last sentinel’ to
protect the court-martial from unlawful command influence.”
Id.; see Patricia A. Ham, Revitalizing the Last Sentinel: The
Year in Unlawful Command Influence, Army Law., May 2005, at 1.
9
United States v. Harvey, No. 04-0801/MC
military judge’s duty to allocate the burdens between the
prosecution and the defense.
In discharging his duty of allocating the burden, the
military judge engages in a two-stage process to permit the
parties to establish the factual predicate related to any issues
of unlawful command influence. The military judge initially
requires the defense to carry the burden of raising an unlawful
command influence issue. This threshold showing must be more
than mere “command influence in the air”11 or speculation.12 But
because of the congressional prohibition against unlawful
command influence and its invidious impact on the public
perception of a fair trial, we have stated that this threshold
is low.13 The test is “some evidence” of “facts which, if true,
constitute unlawful command influence, and that the alleged
unlawful command influence has a logical connection to the
court-martial in terms of its potential to cause unfairness in
the proceedings.”14
If the military judge concludes that the defense has raised
the issue of unlawful command influence, the burden shifts to
the government to show either that there was no unlawful command
11
United States v. Johnson, 54 M.J. 32, 34 (C.A.A.F. 2000)
(“However, ‘proof of [command influence] in the air, so to
speak, will not do.’” (quoting United States v. Allen, 33 M.J.
209, 212 (C.M.A. 1991))).
12
Biagase, 50 M.J. at 150 (citing United States v. Johnston, 39
M.J. 242, 244 (C.M.A. 1994)).
13
Id. (citing Johnston, 39 M.J. at 244).
14
Id. (citations and quotation marks omitted).
10
United States v. Harvey, No. 04-0801/MC
influence or that the unlawful command influence did not affect
the proceedings.15 In Biagase, we set forth the three options
available to the government: “[T]he Government must prove
beyond a reasonable doubt: (1) that the predicate facts do not
exist; or (2) that the facts do not constitute unlawful command
influence; or (3) that the unlawful command influence will not
prejudice the proceedings or did not affect the findings and
sentence.”16
The Biagase analysis we have established for the military
judge is rooted in the approach that we have applied on appeal
for over a decade. “On appeal, an appellant must ‘(1) show
facts which, if true, constitute unlawful command influence; (2)
show that the proceedings were unfair; and (3) show that the
unlawful command influence was the cause of the unfairness.’”17
With this well-established analysis to evaluate allegations
of unlawful command influence, we proceed to apply this analysis
in this case.
2. Our evaluation of both the military judge and the lower
court considering the command influence issue
The lower court shared the apparent view of the military
judge that the defense did not meet its burden of raising the
15
Id. at 151.
16
Id.
17
United States v. Dugan, 58 M.J. 253, 258 (C.A.A.F. 2003)
(citing Stombaugh, 40 M.J. at 213).
11
United States v. Harvey, No. 04-0801/MC
issue of unlawful command influence.18 The lower court reasoned
that the mere presence of the convening authority was
insufficient to raise the issue of unlawful command influence
and that the trial defense counsel only had presented “an
unsupported allegation . . . [supported only by] speculation.”19
Specifically, the lower court explained that there was no
evidence that the members either saw or recognized the convening
authority, or that his presence influenced the members.20
In light of the ruling of both the military judge and the
lower court, the pivotal issue is whether the trial defense
counsel carried the initial burden of raising the unlawful
command influence issue. Our sole concern here is whether the
defense produced “some evidence” of “facts which, if true,
constitute unlawful command influence and that the alleged
unlawful command influence has a logical connection to the
court-martial in terms of its potential to cause unfairness in
the proceedings.”21 We review this issue de novo.22
18
Harvey, 60 M.J. at 614.
19
Id.
20
Id.
21
Biagase, 50 M.J. at 150 (citations and quotation marks
omitted).
22
United States v. Wallace, 39 M.J. 284, 286 (C.M.A. 1994)
(“Where the issue of unlawful command influence is litigated on
the record, the military judge’s findings of fact are reviewed
under a clearly-erroneous standard, but the question of command
influence flowing from those facts is a question of law that
this Court reviews de novo.”).
12
United States v. Harvey, No. 04-0801/MC
At the outset we hold that there are errors in the analysis
of both the lower court and the military judge. Indeed, we
conclude that the military judge erred in applying the Biagase
analysis. First, he erred in concluding that the defense had
not produced “some evidence” sufficient to raise the issue of
unlawful command influence. Second, having made this error, the
military judge never shifted the burden to the Government to
prove there was no unlawful command influence.
As both the lower court and the military judge erred in
concluding that the defense had not produced “some evidence”
sufficient to raise the issue of unlawful command influence, we
address this error first.23
In our view, the record establishes the low threshold of
“some evidence” to raise the issue of unlawful command
influence.24 To his credit, the military judge spotted the
potential unlawful command influence issue but then failed to
apprehend the significance of this issue in the context of the
trial developments.
At trial it was the military judge who lanced open the
unlawful command influence issue when the convening authority
23
See Dugan, 58 M.J. at 258 (holding that both the lower court
and the military judge erred in concluding that the appellant
did not meet the initial burden of raising the issue of unlawful
command influence).
24
Id. (holding that “to the extent the military judge and the
Court of Criminal Appeals concluded Appellant did not meet his
initial burden of raising the issue of unlawful command
influence, they erred”).
13
United States v. Harvey, No. 04-0801/MC
appeared in the courtroom during the closing arguments. The
military judge raised the issue of command influence in an ex
parte inquiry to the Government counsel at the first available
recess. Major (MAJ) Loughlin’s appearance created enough of a
concern that the military judge then felt it necessary to raise
the issue on the record in an Article 39(a), UCMJ, session.
Several circumstances made the convening authority’s
presence in the courtroom particularly problematic. First, MAJ
Loughlin was wearing his flight suit when he entered the
courtroom, and throughout the trial of this case the Government
characterized Appellant’s misconduct as a direct threat to the
safety of the aviation community.
Second, although the military judge explicitly stated that
he had “no idea” whether the members recognized MAJ Loughlin or
whether they knew who he was, the trial developments were
inconsistent with this assertion, and in fact established the
members’ knowledge of the convening authority. We acknowledge
that trial defense counsel, as an officer of the court,
characterized the relationship between MAJ Loughlin and the
senior member as “intimately familiar.”25 But what we also
consider important here is that trial defense counsel had
unsuccessfully challenged for cause the senior member because
25
We afford this assertion little weight, as the voir dire of
this member had already established that there was no
“relationship” between this member and the convening authority.
14
United States v. Harvey, No. 04-0801/MC
she personally knew the convening authority and was a
subordinate member of his command. Indeed, the military judge
expressly acknowledged that the senior member and MAJ Loughlin
knew each other.
Third, the trial defense counsel specifically asserted that
it was “obvious during the whole closing argument that the panel
was looking over our shoulder.” While the military judge
replied that he “didn’t see that,” he did not inquire further
into this matter. In light of all the other trial developments,
we conclude that the military judge’s observations are
insufficient to negate the other evidence of possible unlawful
command influence.
Here, we share the military judge’s judicial instinct in
questioning the presence of the convening authority at the
court-martial. A court-martial is a public trial.26 There is no
rule that the convening authority cannot attend a court-
martial.27 But, as this case illustrates, the presence of the
convening authority at a court-martial may raise issues.
26
“The sixth amendment right to a public trial belongs to the
defendant rather than the public; a separate first amendment
right governs the interests of the public and the press in
attending a trial.” 5 Wayne R. LaFave et al., Criminal
Procedure, § 24.1(a), at 450 (2d ed. 1999).
27
Attendance by the convening authority at a court-martial is
subject to the military judge’s authority to close the court to
the public or specific individuals. See United States v. Short,
41 M.J. 42, 43 (C.M.A. 1994) (“The right to an open and public
court-martial is not absolute, however, and a court-martial can
be closed to the public or individuals can be excluded in the
15
United States v. Harvey, No. 04-0801/MC
Therefore, before attending a court-martial, a convening
authority should give prudent and careful consideration as to
the impact one’s presence could have on both the proceedings and
the perception of fairness of the court-martial. In this
regard, we encourage a convening authority to initiate a
dialogue with both the command staff judge advocate and the
trial counsel before entering a courtroom. Discussing this
matter with these lawyers would permit them to advise the
convening authority of both general and case specific issues
that may be raised by the convening authority’s presence at the
court-martial. It would also afford the trial counsel the
opportunity to advise both the military judge and the trial
defense counsel of the presence of the convening authority in
advance, so that the matter can be discussed with the military
judge and any issues litigated before the convening authority is
present in court before the panel members.
The military judge and the lower court focused on the
failure of the trial defense counsel to avail himself of the
opportunity that the military judge gave to voir dire the panel.
This view misapprehends the law regarding unlawful command
influence.
Again, we reaffirm that the law of unlawful command
influence establishes a low threshold for the defense to present
discretion of the military judge.”); Rule for Courts-Martial
(R.C.M.) 806(b).
16
United States v. Harvey, No. 04-0801/MC
“some evidence” of unlawful command influence.28 Long ago in
United States v. Rosser,29 we made clear that this Court will be
vigilant in protecting a court-martial from improper influence
by the convening authority. In Rosser, we held that the
military judge failed to make an appropriate “inquiry into the
particular facts and circumstances” regarding the
“eavesdrop[ping]” of a company commander and accuser in the
case, on court-martial proceedings.30 We reversed the case
because the military judge was “remiss in his affirmative
responsibilities to avoid the appearance of evil in his
courtroom and to foster public confidence in court-martial
proceedings.”31 Our holding in Rosser is rooted, in part, in our
concern about the impact on a court-martial of the presence of
the convening authority at trial. In light of this precedent
and the facts of this case, we hold the trial defense counsel
here met the low threshold of presenting “some evidence” of
unlawful command influence.
The military judge misevaluated the evidence that raised
the issue of unlawful command influence. In the case before us,
we have “some evidence” which could constitute unlawful command
influence. The military judge then compounded the impact of
28
Biagase, 50 M.J. at 150 (citations and quotation marks
omitted).
29
6 M.J. 267, 269-73 (C.M.A. 1979).
30
Id. at 270-73.
31
Id. at 273.
17
United States v. Harvey, No. 04-0801/MC
this error by not calling upon the Government to rebut the
existence of the command influence or to establish that it did
not prejudice the proceedings.
Let there be no misunderstanding, we do not hold that the
military judge was required to grant the defense motion for a
mistrial based on the evidence before him at that time.
Instead, as the “last sentinel” at trial to protect against
unlawful command influence, the military judge had a duty to
inquire further into this matter. As he did not and the
evidence before him raised the issue of unlawful command
influence, our attention is directed to the military judge’s
errors relating to failure to allocate properly the burden
between the parties as required by Biagase. We now turn to the
remedy we should employ to address this unresolved appearance of
unlawful command influence.
3. The remedy
A military judge is empowered to protect against unlawful
command influence. Also, the military judge has great
discretion in fashioning a remedy.32 But, as the military judge
misapprehended the nature and degree of the potential unlawful
command influence here, he did not call upon the Government to
meet its burden nor did he take corrective action that might
32
Gore, 60 M.J. 186-89; Rivers, 49 M.J. at 444.
18
United States v. Harvey, No. 04-0801/MC
have permitted the trial to proceed fairly. Therefore, this
Court must fashion a remedy for the error in this case.
Appellant seeks a dismissal with prejudice as a remedy.
Responding to this claim for relief, we find guidance in our
precedent stating: “We have long held that dismissal is a
drastic remedy and courts must look to see whether alternative
remedies are available.”33 We further reasoned that “dismissal
of charges is permissible when necessary to avoid prejudice
against the accused and the findings of fact of the military
judge documented the prejudice to Appellant from the egregious
error in this case . . . .”34 Applying this precedent here we
consider several factors: the nature of the error, alternative
remedies, and possible prejudice to Appellant.
Initially, we focus on the nature and severity of the
problem. Here, we have unrebutted evidence raising the issue of
unlawful command influence in the courtroom. It is an
undisputed fact that MAJ Loughlin, the officer who convened the
court-martial, was present in his flight suit in the courtroom
during closing arguments of counsel on findings. This occurred
after the Government had characterized Appellant’s misconduct
throughout the trial as a direct threat to the safety of the
aviation community. Also, the senior member was a member of MAJ
Loughlin’s squadron. She therefore had an understanding of his
33
Gore, 60 M.J. at 187.
34
Id.
19
United States v. Harvey, No. 04-0801/MC
position and knew him. Again, the failure of the military judge
to allocate the burden between the parties resulted in an
inadequate factual basis as to the exact nature and extent of
any unlawful command influence that might have been created with
regard to the senior member, or any other members of the court-
martial.
This situation invites us to consider possible methods to
obtain these facts. We have embraced an evidentiary hearing in
United States v. DuBay35 as a method to develop facts necessary
for appellate review.36 The so-called “DuBay hearing” has since
become a well-accepted procedural tool for addressing a wide
range of post-trial collateral issues.37 Such a hearing possibly
would afford the parties the opportunity to address both the
nature and the extent of the command influence, and its impact
on the proceedings. But we reject this alternative remedy for
three reasons.
At an evidentiary hearing, the predicate facts that raise
the issue of unlawful command influence will not be in dispute.
This is so because the evidence of unlawful command influence
stems from the undisputed fact that MAJ Loughlin, the officer
who convened the court-martial, was present and in his flight
35
17 C.M.A. 147, 37 C.M.R. 411 (1967).
36
Indeed, in DuBay, we remanded that case for a factfinding
hearing on post-trial claims of unlawful command influence. 17
C.M.A. at 148-49, 37 C.M.R. at 412-13.
37
United States v. Fagan, 59 M.J. 238, 241 (C.A.A.F. 2004).
20
United States v. Harvey, No. 04-0801/MC
suit during closing arguments of counsel on findings. It is
also undisputed that at least one of the court-martial members
knew MAJ Loughlin well. Indeed, that member was the senior
member of the panel and was a subordinate in the chain of
command to MAJ Loughlin.
Therefore, the Government has two options: (1) show that
these facts did not rise to the level of unlawful command
influence; or (2) establish that the convening authority’s
presence had no prejudicial impact.38
We have stated that where the question of unlawful command
influence involves court members, Military Rule of Evidence
(M.R.E.) 606(b) limits the government’s opportunity to establish
that the unlawful command influence had no impact on the
proceedings:
This rule prohibits inquiry into two types of matters: (1)
“any matter or statement occurring during the course of the
deliberations,” and (2) “the effect of anything upon [a]
member’s or any other member’s mind or emotions as
influencing the member to assent to or dissent from the
findings or sentence or concerning the member’s mental
process in connection therewith[.]”
The rule has three exceptions to the first prohibition, one
of which permits testimony about “any matter or statement”
occurring during the deliberations when there is a
“question whether . . . there was unlawful command
influence.” The exceptions, however, do not permit
circumvention of the second prohibition (inquiry into the
effect on a member).39
38
Biagase, 50 M.J. at 151.
39
Dugan, 58 M.J. at 259-60.
21
United States v. Harvey, No. 04-0801/MC
Therefore, in light of M.R.E. 606(b), there could only be
an inquiry of the members regarding what, if anything, was said
during deliberations about the commander’s presence in the
courtroom and their relationship with him. No one could
question the members, however, as to the impact of the convening
authority’s presence in the courtroom “on any member’s mind,
emotions, or mental processes.”40
In considering the option of such a narrowly focused DuBay
hearing, we must bear in mind the present posture of this case,
including the assertion of excessive post-trial delay presented
in granted Issue II. We discuss this issue of post-trial delay
in greater detail later in this opinion. It is sufficient at
this point to note that Appellant’s claim as to Issue II is
meritorious and impacts the remedy we fashion to address the
error relating to the alleged unlawful command influence.
We note that the panel’s deliberation occurred almost seven
years ago. Because of the serious nature of the error here
involving the fundamental fairness of the court-martial and in
light of the post-trial delay, a DuBay hearing is not
appropriate. The extraordinary unexplained delay here is a
significant factor in our declining to order a DuBay hearing.41
40
Id. at 260.
41
United States v. Wilson, 10 C.M.A. 398, 403, 27 C.M.R. 472,
477 (C.M.A. 1959) (“From the historic day at Runnymede, in 1215,
when the English barons exacted the Magna Carta from King John,
a guiding principle in English, and later American,
22
United States v. Harvey, No. 04-0801/MC
In this case, the appropriate remedy is to set aside the
findings and sentence without prejudice thereby permitting a
rehearing. This remedy is proportionate to three circumstances
here: (1) the military judge failing to allocate properly the
burden between the parties notwithstanding the defense having
established “some evidence” of unlawful command influence; (2)
the prosecution’s failure to rebut the taint of unlawful command
influence; and (3) the excessive and unreasonable post-trial
delay.
B. Issue II: Denial of speedy appellate review
Appellant asserts that the 2,031 days for a first-level
appellate review by a service court of criminal appeals was a
constitutional due process violation. In Toohey v. United
States,42 this Court identified four factors in determining
whether post-trial delay violates due process rights: (1) the
length of the delay; (2) the reasons for the delay; (3) the
appellant’s assertion of his right to a timely review; and (4)
jurisprudence has been that justice delayed is justice
denied.”).
42
60 M.J. 100 (C.A.A.F. 2004). In Toohey, this Court held that
the appellant established a threshold showing of facially
unreasonable delay, even without showing prejudice. Id. at 103.
This Court remanded to the United States Navy-Marine Corps Court
of Criminal Appeals for it to determine whether the lengthy
delay violated the appellant’s Fifth Amendment right to due
process and whether the delay warranted some form of relief.
Id. at 104.
23
United States v. Harvey, No. 04-0801/MC
prejudice to the appellant.43 More recently in United States v.
Moreno,44 this Court explained, “Once this due process analysis
is triggered by a facially unreasonable delay, the four factors
are balanced, with no single factor being required to find that
post-trial delay constitutes a due process violation.”45
Consistent with this precedent, we evaluate these four factors.
1. Length of the delay
Simply stated, the 2,031 days for a first-level appellate
review by a service court of criminal appeals is facially
unreasonable as it clearly is excessive and inordinate.46
2. Reasons for the delay
This is not an unusually long and complex case. Also,
there is no reasonable explanation for why it took the convening
authority over a year to take action on Appellant’s case. Next,
we observe that it took 701 days for Appellant’s case to be
briefed by her assigned appellate defense counsel. But we have
noted in both Diaz v. Judge Advocate General of the Navy,47 and
43
Id. at 102 (deriving these factors from the Supreme Court’s
speedy trial analysis in Barker v. Wingo, 407 U.S. 514, 530
(1972)).
44
63 M.J. 129 (C.A.A.F. 2006).
45
Id. at 136.
46
Here, 370 days passed before the convening authority acted.
Another 195 days passed before the case was docketed at the
lower court and a total of 2,031 days elapsed between sentencing
and the initial decision of the lower court. It took 555 days
for the lower court to decide Appellant’s case once the
Government filed its brief in response to her brief.
47
59 M.J. 34, 38 (C.A.A.F. 2003).
24
United States v. Harvey, No. 04-0801/MC
Moreno,48 it is the government that has the ultimate
responsibility for the staffing and administrative management of
the appellate review process for cases pending before the lower
court. Moreover, the Government has failed to present any
evidence that the Appellant benefited from the numerous delays
requested by the appellate defense counsel. As in both Diaz and
Moreno, we decline to hold Appellant responsible for the lack of
“institutional vigilance” that should have been exercised in
this case.49
Also, the Government took 210 days to file a responsive
brief at the lower court. The Government has not presented any
legitimate reasons50 or exceptional circumstances for this
lengthy period. The case had been fully briefed and submitted
to the lower court for 555 days before the lower court issued
its decision. Although this time period is lengthy, we “apply a
more flexible review of this period, recognizing that it
involves the exercise of the Court of Criminal Appeals’ judicial
decision-making authority.”51 Nonetheless, under these
circumstances, we conclude that this second Barker factor also
weighs heavily in favor of Appellant.
48
63 M.J. at 137.
49
Id. (citing Diaz, 59 M.J. at 39-40).
50
In repeated requests for enlargements at the lower court, the
Government’s justification included assertions that appellate
Government counsel was “maintaining a significant case load,”
and referred to “the volume of criminal appellate work in the
division.”
51
Id.
25
United States v. Harvey, No. 04-0801/MC
3. Assertion of the right to a timely review and appeal
At the lower court, Appellant belatedly asserted her right
to a timely review on July 20, 2004. Her failure to object
earlier is not a factor that weighs heavily against her.52
Moreover, as the lower court decided her case within ten days of
her belated demand, this factor weighs against Appellant, but
not heavily.53
4. Prejudice
A final factor is any prejudice either personally to
Appellant or to the presentation of her case that arises from
the excessive post-trial delay.54 Important to our analysis is
our conclusion that Appellant’s appeal is meritorious as to
Issue I, alleging unlawful command influence. As Appellant’s
appeal is meritorious, she may have served oppressive
incarceration during the appeal period. Appellant was sentenced
to confinement for sixty days and she completed her confinement
even before the convening authority acted. Therefore, in the
unique facts of this case, the appellate delay here did not
result in prolonged incarceration that may have been oppressive.
Moreover, we have stated that one facet of prejudice is
where an appellant demonstrates “particularized anxiety or
52
Id. at 138.
53
See id. (“[T]he weight against [the appellant] is slight given
that the primary responsibility for speedy processing rests with
the Government and those to whom he could complain were the ones
responsible for the delay.”).
54
Id. at 138-41.
26
United States v. Harvey, No. 04-0801/MC
concern that is distinguishable from the normal anxiety
experienced by prisoners awaiting an appellate decision.”55
Appellant has not made such a showing here.
The final sub-factor focuses on whether there is any
“negative impact on [her] ability to prepare and present [her]
defense at the rehearing.”56 We have observed that “Due to the
passage of time, witnesses may be unavailable [and] memories may
have faded . . . .”57 “In order to prevail on this factor an
appellant must be able to specifically identify how he would be
prejudiced at a rehearing due to the delay. Mere speculation is
not enough.”58
To satisfy this standard, Appellant asserts that a
rehearing will be unfair or a DuBay hearing pointless. This
generalized assertion of prejudice is insufficient to establish
specific harm that she would encounter at a rehearing and she
has not demonstrated prejudice.59
55
Id. at 140.
56
Id.
57
Id.
58
Id. at 140-41 (footnote omitted).
59
We note that our recent Moreno opinion prudently leaves open
the possibility in any later proceeding for Appellant to
demonstrate prejudice arising from post-trial delay and states:
We are mindful of the difficulty that an appellant and his
appellate defense counsel may have at this juncture of the
process in identifying problems that would hinder an
appellant’s ability to present a defense at rehearing. If
an appellant does experience problems in preparing for
trial due to the delay, a Sixth Amendment speedy-trial
motion could appropriately be brought at the trial level.
27
United States v. Harvey, No. 04-0801/MC
5. Conclusion –- Barker Factors
In balancing the Barker factors, where an appellant has not
shown prejudice under the fourth factor, “we will find a due
process violation only when, in balancing the other three
factors, the delay is so egregious that tolerating it would
adversely affect the public’s perception of the fairness and
integrity of the military justice system.”60 The unexplained and
unreasonably lengthy delay in this case weighs heavily in
Appellant’s favor. On balance, we conclude that Appellant was
denied her due process right to speedy review and appeal
notwithstanding her being unable to establish specific prejudice
under the fourth factor. We turn next to the relief appropriate
for this constitutional violation.
6. Relief afforded to Appellant because of the due process
violation for denying a speedy appellate review
As this due process error is one of constitutional
magnitude, the burden shifts to the Government to “‘show that
this error was harmless beyond a reasonable doubt.’”61 We are
mindful of the fact that Appellant has not demonstrated specific
prejudice. However, Appellant has been successful on a
substantive issue of the appeal and a rehearing has been
Id. at 141 n.19.
60
United States v. Toohey, 63 M.J. __ (20-21) (C.A.A.F. 2006).
61
United States v. Brewer, 61 M.J. 425, 432 (C.A.A.F. 2005)
(quoting United States v. Miller, 47 M.J. 352, 359-60 (C.A.A.F.
1997)).
28
United States v. Harvey, No. 04-0801/MC
authorized. Also, we view the Barker factors weighing heavily
in Appellant’s favor. In light of these circumstances, we
cannot say that the Government has carried its heavy burden of
establishing that this constitutional error arising from the
post-trial delay is harmless beyond a reasonable doubt.
Moreover, as our balancing reflects, we view the delay in this
instance to have been “so egregious that tolerating it would
adversely affect the public’s perception of the fairness and
integrity of the military justice system.”62 As to relief from
the due process violation arising from the excessive and
unreasonable post-trial delay, we seek to fashion a remedy that
will afford Appellant meaningful relief. In Moreno we addressed
the range of relief options available.63
62
Toohey, 63 M.J. at __ (21).
63
As we stated in Moreno:
The nature of that relief will depend on the circumstances
of the case, the relief requested, and may include, but is
not limited to: (a) day-for-day reduction in confinement
or confinement credit; (b) reduction of forfeitures; (c)
set aside of portions of an approved sentence including
punitive discharges; (d) set aside the entire sentence,
leaving a sentence of no punishment; (e) a limitation upon
the sentence that may be approved by a convening authority
following a rehearing; and (f) dismissal of the charges and
specifications with or without prejudice. Clearly this
range of meaningful options to remedy the denial of speedy
post-trial processing provides reviewing authorities and
courts with the flexibility necessary to appropriately
address these situations on a case-by-case basis.
63 M.J. at 143.
29
United States v. Harvey, No. 04-0801/MC
Initially, we note that we, in part, fashioned our relief
as to the error arising from Issue I, authorizing a rehearing
rather than a DuBay hearing to address the issue of unlawful
command influence, because of the excessive post-trial delay in
this case. Yet we conclude that further relief is warranted.
As Appellant has served the term of confinement, day-for-
day credit for each day of unreasonable and unexplained post-
trial delay would provide no meaningful effect. On the other
hand, we also view dismissal with prejudice of the charges
inappropriate under the circumstances of this case. Again, as
in Moreno, we are obliged to fashion a remedy where we have
authorized a rehearing and there is presently no direct sentence
relief that we can provide Appellant. In this circumstance we
will afford Appellant relief by limiting the sentence that may
be approved by the convening authority should the rehearing
result in a conviction and new sentence.64
DECISION
The findings and sentence as approved by the convening
authority and the decision of the United States Navy-Marine
Corps Court of Criminal Appeals as to both findings and sentence
are set aside without prejudice. A rehearing is authorized. In
the event that a rehearing is held resulting in a conviction and
64
See id. at 143-44.
30
United States v. Harvey, No. 04-0801/MC
a sentence, the convening authority may approve no portion of
the sentence other than a punitive discharge.
31
United States v. Harvey, No. 04-0801/MC
CRAWFORD, Judge (dissenting):
Courts-martial are public trials, and there is no
prohibition against the convening authority attending a portion
of the trial. I disagree with the majority that the presence of
the convening authority during closing arguments is some
evidence of unlawful command influence when there is no evidence
the members either saw or recognized the convening authority.
The military judge gave the trial defense counsel an
opportunity to establish that the convening authority was seen
or recognized by the members. A proffer of proof by the trial
defense counsel that the senior member, Captain (CPT) Cisneros,
was “intimately familiar” with the acting convening authority
does not constitute such evidence. First, we do not know what
that statement means. There was no indication during the voir
dire, to include the individual voir dire, of any type of
relationship between CPT Cisneros and the acting convening
authority, Major (MAJ) Loughlin, other than she knew he was the
executive officer of the squadron and she was a member of the
same squadron. CPT Cisneros did not even know who the convening
authority was until told at trial.
In a squadron or a battalion unit, many members of a panel
will know, or be familiar with, the convening authority who is
the squadron or battalion commander. During voir dire, the
members testified under oath that they did not have any personal
United States v. Harvey, No. 04-0801/MC
prejudices or relationships to either side of the case which
would have an impact on their deliberations. They also
indicated there was nothing in their past education or
experience that would have an impact on their deliberations.
And to the catchall question, they testified that they were not
aware of anything else not mentioned in the questions which
would have an influence on their deliberations. CPT Cisneros,
MAJ Vosper, CPT Williams, and Chief Warrant Officer (CWO) Bolter
testified they knew the convening authority. They all stated
unequivocally that they did not feel the convening authority
would be displeased if there was an acquittal.
During individual voir dire, MAJ Vosper testified he was in
the same squadron and flew with MAJ Loughlin, but he did not
think that would have an impact or influence on him. CPT
Cisneros knew the convening authority, MAJ Loughlin, as the
executive officer of the headquarters squadron. Outside of the
hearing of the members, it was clarified that MAJ Loughlin was
the executive officer, but on the date of referral he was the
acting convening authority. A number of the members knew
counsel for both sides but indicated that would have no impact
on their deliberations. The defense challenged CPT Cisneros and
MAJ Vosper because they knew the convening authority. The trial
counsel noted that because this was a small flight squadron,
“Everyone is going to be affiliated with ATC or flights . . . .”
2
United States v. Harvey, No. 04-0801/MC
After hearing argument, the military judge denied the challenge
for cause against CPT Cisneros and MAJ Vosper but granted
challenges for cause against CPT Williams, CWO Bolter, and
Master Sergeant (MSgt) Soucy. The defense then used their
preemptory challenge against MAJ Vosper.
The evidence during voir dire does not establish that the
senior member of the court was “intimately familiar” beyond the
normal relationship that exists between officers in the same
squadron or battalion. We have never held that a statement by
an attorney constitutes evidence or an accepted proffer. In
essence, the majority seems to convert the statement by the
trial defense counsel to the status of unrebutted evidence.1
United States v. Warner, 62 M.J. 115, 125 n. (C.A.A.F. 2005).
To convert statements by counsel and a military judge to
findings of fact is not only new, but also unprecedented.
This Court has guarded against unlawful command influence.
See, e.g., United States v. Stirewalt, 60 M.J. 297, 300-01
(C.A.A.F. 2004); United States v. Gore, 60 M.J. 178, 179-89
1
But see United States v. Gosselin, 62 M.J. 349, 353-56
(C.A.A.F. 2006) (Crawford, J., dissenting), where this Court
noted that statement of counsel may not be used to determine
providency even though such is allowed by the Supreme Court. In
this case, the statement is used as evidence. What is the
difference? In United States v. Turner, 39 M.J. 259, 266
(C.M.A. 1994), this Court held that a mere passing remark by
defense counsel during his opening statement was not sufficient
to open the door for additional evidence by the government, but
here a mere passing statement constitutes evidence itself.
3
United States v. Harvey, No. 04-0801/MC
(C.A.A.F. 2004). Congress has done the same and has provided in
Article 37(a), Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 837(a) (2000) that a convening authority “may [not]
censure, reprimand, or admonish the court or any member.” This
Court has now extended Article 37(a), UCMJ, far beyond its plain
meaning, to include mere presence in the public courtroom to be
the equivalent of a censure, reprimand, or admonishment.
The facts presented in this case do not support the
existence of unlawful command influence nor did the defense
counsel’s offhanded comments amount to “some evidence” of
unlawful command influence. “Some evidence” must be more than a
mere allegation or speculation. See United States v. Dugan, 58
M.J. 253, 258 (C.A.A.F. 2003). I agree with the United States
Navy-Marine Corps Court of Criminal Appeals that “trial defense
counsel never stated he observed who or what the members might
have been looking at.” United States v. Harvey, 60 M.J. 611,
614 (N-M. Ct. Crim. App. 2004). “Rather, trial defense counsel
made the assumption that the members were looking at MAJ
Loughlin.” Id. His assumption or suggestion that they were
“focused on Major Loughlin is just that, a suggestion,
assumption or speculation without deeper meaning and not
supported by the record.” Id. The trial defense counsel was
not even aware of the presence of MAJ Loughlin in the courtroom
until it was brought to his attention by the military judge.
4
United States v. Harvey, No. 04-0801/MC
How could the trial defense counsel say with any
credibility who or what the members were looking at or could see
in the courtroom? Further, the military judge specifically
stated he did not see the members “looking over [counsel’s]
shoulder.” The defense was also given the opportunity to
conduct a further voir dire of the members and develop other
facts that might establish unlawful command influence. The
failure to conduct additional voir dire of the members under
oath and establish evidence in the record constitutes a waiver
of the issue absent plain error. Of additional note is the fact
that the defense counsel did not raise the issue of the
convening authority’s involvement in his post-trial submission.
This constitutes waiver of this issue or at least is a good
indication of the trial defense counsel’s opinion of the merit
of the issue. United States v. Gudmundson, 57 M.J. 493, 495
(C.A.A.F. 2002) (holding that an accused waives the issue of a
convening authority’s disqualification if he knows of the issue
and fails to object (citing United States v. Fisher, 45 M.J.
159, 163 (C.A.A.F. 1996)); United States v. Jeter, 35 M.J. 442,
447 (C.M.A. 1992) (holding that if an accused is aware of the
convening authority’s “personal interest” in a case and fails to
object, the accused waives the issue); see United States v.
Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995) (concluding that an
accused can initiate an affirmative and knowing waiver of
5
United States v. Harvey, No. 04-0801/MC
unlawful command influence to secure the benefits of a pretrial
agreement).
Essentially, the majority’s opinion allows trial defense
counsel to create the appearance of “some evidence” by mere
assertions on the record and create the appearance of an issue
when in fact there is none. This opinion does not allow an
accused to waive affirmatively an issue of unlawful command
influence or preclude further inquiry once the issue is raised
even if it is in his best interest not to pursue it. In fact,
it also removes from the military judge the ability to determine
if “some evidence” exists. Based on the majority’s opinion, if
the phrase or concept of unlawful command influence is raised in
any shape, form, or fashion, the military judge should assume
“some evidence” is raised and “allocate” the burden to the
government to meet its burden in accordance with the tests set
out in United States v. Biagase, 50 M.J. 143, 150-51 (C.A.A.F.
1999).
The majority’s assertion that a United States v. DuBay, 17
C.M.A. 147, 37 C.M.R. 411 (1967), hearing would be fruitless
because of the passage of time is pure speculation. Whether a
DuBay is fruitless should not be based on speculation at this
level but should await the DuBay hearing to determine the extent
of the members’ memories. Thus, at a minimum, I would order a
DuBay hearing.
6
United States v. Harvey, No. 04-0801/MC
Because of the lack of “some evidence” of unlawful command
influence and the failure of the defense to accept the military
judge’s invitation to conduct further voir dire, I respectfully
dissent as to Issue I.
As to Issue II, until there has been a DuBay hearing to
determine whether the convening authority’s presence in the
courtroom had an impact on the proceedings,2 there has not been a
showing of prejudice as to findings or sentence as required by
the Barker3 test. The majority assumes unlawful command
influence exists and thus, they also assume the prejudice prong
of the Barker test has been met.
The defense has the burden to show “some evidence” which
would “constitute unlawful command influence.”4 In regard to a
due process violation for excessive post-trial delay, the
defense also has the burden to establish prejudice.5 The
majority fails to hold the defense responsible for either
burden.
The majority has started a troubling trend of finding a
violation of an appellant’s right to a speedy post-trial review
2
Defense counsel may show at a DuBay hearing that the rules at
their disposal at a retrial would not be beneficial. See, e.g.,
United States v. Moreno, 63 M.J. 129, 149 (C.A.A.F. 2006)
(Crawford, J., concurring in part and dissenting in part).
3
Barker v. Wingo, 407 U.S. 514, 530 (1972).
4
Biagase, 50 M.J. at 150 (citations and quotation marks
omitted).
5
United States v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995).
7
United States v. Harvey, No. 04-0801/MC
if they find any other meritorious substantive issues in a case
without the benefit of a post-trial hearing as required by other
courts.6 The majority is essentially saying that if there is a
meritorious substantive issue, the prejudice prong of Barker is
met without fully evaluating whether there is in fact actual
prejudice. This is not how that prong of the Barker test was
intended to be applied. Until the defense establishes that the
convening authority’s presence had an impact on the proceeding,
there is no showing of actual prejudice as to the findings or
sentence.
I do not concur in the majority’s conclusion that
Appellant’s post-trial due process for speedy review has been
violated. If, in fact, there is prejudice as the majority
asserts because of the passage of time and its effect on
memories, why not dismiss the charges and their specifications?
Is there really a difference in the effect of the passage of
time on the memories of court members for the purposes of a
DuBay hearing versus the memories of witnesses7 for a new trial?
6
See, e.g., United States v. Alston, 412 A.2d 351, 362 (D.C.
1980) (trial judge did not find specific prejudice because of
the defendant’s ability to use evidence in its original form).
7
Military Rules of Evidence provide for assistance in refreshing
the recollection of witnesses’ memory after a passage of time.
If witnesses are not available, their former testimony
can be introduced under the Military Rule of Evidence
(M.R.E.) 804(b)(1) and M.R.E. 801(d)(1)(A) and (B) or
M.R.E. 803(5). Likewise, if memories fade, they can
8
United States v. Harvey, No. 04-0801/MC
I would affirm the findings and sentence in this case because
the defense has failed to meet its burdens.
be refreshed under M.R.E. 612. If there is a change
in testimony, the parties have a right to impeach the
witness. M.R.E. 613.
Moreno, 63 M.J. at 149 (Crawford, J., concurring in part and
dissenting in part).
9
United States v. Harvey, No. 04-0801/MC
BAKER, Judge (dissenting):
I do not believe Appellant has met his initial burden
under United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F.
1999), of showing “some evidence,” which if true, would
constitute unlawful command influence. Therefore, I
respectfully dissent. However, while the case law does not
require military judges to proactively intervene in the
absence of some evidence of unlawful command influence, I
believe they should as a matter of legal policy where, as
in this case, the unlawful command influence door is left
ajar. Accordingly, as a matter of legal policy, but not
law, I agree with the disposition of this case. Based on
the facts of this case as well as the special
responsibility military judges have with respect to
allegations of unlawful command influence, I believe the
military judge should have done more to inquire of the
members notwithstanding trial defense counsel’s decision
not to do so himself.
I. Application of Biagase
In Biagase this Court held that the test for raising
unlawful command influence is “some evidence” of “facts,
which if true, constitute unlawful command influence, and
that the alleged unlawful command influence has a logical
connection to the court-martial in terms of its potential
United States v. Harvey, No. 04-0801/MC
to cause unfairness in the proceedings.” Id. at 150
(citation and quotation marks omitted). The accused bears
the burden of establishing some evidence of unlawful
command influence. Id. If this burden is met, then the
burden shifts to the government to show either that there
was no unlawful command influence or that such influence
will not affect the proceedings. Id. (citing United States
v. Gerlich, 45 M.J. 309, 310 (C.A.A.F. 1996)).
The majority concludes that Appellant met his burden
of initial persuasion based on three circumstances: the
squadron’s executive officer (XO), who was the original
convening authority, entered the court-martial dressed in a
flight suit and observed closing arguments, defense counsel
suggested that the members were distracted by the XO’s
presence, and the military judge acknowledged that the
squadron XO and a senior member of the panel knew one
another. Indeed, the majority concludes that “the
prosecution fail[ed] to rebut the taint of unlawful command
influence” in this case. Thus, the military judge erred in
not shifting the burden to the Government to rebut the
evidence of unlawful command influence.
I am not persuaded that Appellant carried his initial
burden of establishing some evidence, which if true, would
amount to unlawful command influence. First, unless we
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adopt a per se rule barring a convening authority from
attending a court-martial, then the original convening
authority’s qua XO’s presence in this case, without more,
should not amount to unlawful command influence. There
might be arguments for barring convening authorities
generally, or in context, from attending courts-martial.
There are also arguments against adoption of a per se
rule. First, the Rules for Courts-Martial (R.C.M.)
themselves provide that courts-martial shall be open to the
public. See R.C.M. 806(a) (“Except as otherwise provided
in this rule, courts-martial shall be open to the
public.”). In addition, there may be circumstances where
the convening authority might attend a court-martial or
series of courts-martial to set a leadership example, show
respect for the rule of law, or perhaps ensure that an
accused receives a fair trial.
Second, the fact that the squadron XO of an aviation
squadron at an air facility was wearing a flight suit, the
customary uniform of the day on an air facility, is not
remarkable, nor is it evidence of unlawful command
influence. This is true, even in a case involving flight
safety.
Third, the majority cites to the fact that Captain
(CPT) Cisneros, the senior member of the panel, “knew” the
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United States v. Harvey, No. 04-0801/MC
XO. This is unremarkable. She was a member of the XO’s
squadron, a fact identified and explored during voir dire,
when trial defense counsel asked CPT Cisneros how she knew
Major (MAJ) Loughlin, the convening authority. CPT
Cisneros responded, “He’s the XO of H&HS, sir.” When trial
defense counsel then asked CPT Cisneros whether there was
“anything about [CPT Cisneros’s] relationship with [MAJ
Loughlin] that would cause [her] to lean towards the
government or the defense side” in this case, CPT Cisneros
stated, “No, sir.” The member was not challenged for
cause. So the real issue here is whether officers from the
convening authority’s squadron should have been serving on
this court-martial. But this is not Appellant’s claim, and
we have not previously precluded such panel membership on
that ground alone. Neither can we know whether Appellant
might have thought it beneficial to have officers on his
panel who were familiar with his reputation and performance
in the squadron.
Two arguments made by the trial defense counsel also
figure into the majority’s analysis. The trial defense
counsel asked for a mistrial on the ground that it was
“obvious during the whole closing argument that the panel
was looking over our shoulder.” The military judge
disagreed and stated that he “didn’t see that.” The
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United States v. Harvey, No. 04-0801/MC
military judge’s words are ambiguous. He might not have
seen what trial defense counsel saw, or having seen what he
saw, did not share trial defense counsel’s evaluation.
This might have been quickly resolved had trial defense
counsel sought to obtain some evidence of unlawful command
influence from the members themselves when offered the
opportunity to voir dire the members.1
Further, the trial defense counsel stated that one of
the members was “intimately familiar” with the convening
authority qua XO. However, this is not a fact, nor some
evidence, but a turn of phrase now twisted by Appellant to
infer possibilities already addressed and resolved during
voir dire. The member in question was familiar with the XO
as she was an officer in his squadron. And, as established
during voir dire, this familiarity was professional and not
personal.2 (The majority states that it gives this factor
1
MJ: Do you desire to voir dire any of the members?
DC: No, sir.
2
Q: How is it that you know the convening authority,
which would be Major Loughlin?
A: He’s the XO of H&HS, sir.
Q: And you’re a member of that squadron?
A: Correct, sir.
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little weight. Based on the analysis above, I give it no
weight.)
For the reasons stated, applying the Biagase framework
to the facts of this case, I do not believe Appellant
carried his burden at trial of identifying some evidence,
which if true, would amount to unlawful command influence.
II. Legal Policy and Unlawful Command Influence
However, the analysis should not stop here, for in
this case there is tension between two propositions, one
founded in case law and the other found in the same case
law’s descriptive dicta. Even if Appellant did not
establish “some evidence” of unlawful command influence,
was the military judge nonetheless obliged to do something
more as a general matter, or based on the particular
circumstances of this case, as a so-called sentinel against
unlawful command influence? Here, I share the majority’s
conclusion that the primary issue is whether the military
judge properly performed his sentinel duties based on the
presence of the convening authority in the courtroom during
closing arguments in Appellant’s case.
Q: Is there anything about your relationship with
him that would cause you to lean towards the
government or the defense side in this case?
A. No, sir.
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At the same time that Biagase established the
framework for addressing unlawful command influence claims,
it also reaffirmed that military judges “can intervene and
protect a court-martial from the effects of unlawful
command influence.” Biagase, 50 M.J. at 152; see also
United States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998)
(“In this case, the military judge performed his duty
admirably. His aggressive and comprehensive actions
ensured that any effects of unlawful command influence were
purged and that appellant’s court-martial was untainted.”);
United States v. Stoneman, 57 M.J. 35, 42 (C.A.A.F. 2002)
(“This Court has long recognized that, once unlawful
command influence is raised, ‘we believe it incumbent on
the military judge to act in the spirit of the Code by
avoiding even the appearance of evil in his courtroom and
by establishing the confidence of the general public in the
fairness of the court-martial proceedings.’” (quoting
United States v. Rosser, 6 M.J. 267, 271 (C.M.A. 1979))).
This responsibility is distinct from the military judge’s
other responsibilities. This responsibility emerges from
the history, real and perceived, of unlawful command
influence in the military justice system. It goes to the
core of the military justice system and its capacity to be
fair and just. It represents the crux of Congress’s
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United States v. Harvey, No. 04-0801/MC
purpose in establishing a Uniform Code of Military Justice,
an independent civilian federal court to hear appeals based
upon it, and subsequently in establishing an independent
military judiciary.
When it comes to unlawful command influence, military
judges are not mere bystanders at the courts-martial over
which they preside. Although this Court has thus far
declined to hold military judges independently responsible
for identifying and remedying unlawful command influence,
our decisions support the ability of military judges to do
just that. See, e.g., Biagase, 50 M.J. at 152; Rivers, 49
M.J. at 443. Thus, as distinct from the military judge’s
responsibilities as evidentiary gatekeeper where, for
example, the military judge is typically only required to
act in response to counsels’ arguments, military judges in
the unlawful command influence context have a greater
responsibility to intervene to ensure that the proceedings
are fair and that the record is complete.
In this case, the military judge could have easily
gone one step further in testing the facts. Were members
in fact distracted, and perhaps influenced by the convening
authority’s presence? Or, was trial defense counsel
incorrect in his observation that the members were looking
over his shoulder during closing arguments? The only way
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United States v. Harvey, No. 04-0801/MC
to resolve this uncertainty effectively was to ask the
members themselves. The military judge could have taken it
upon himself to make such inquiry, even after trial defense
counsel declined the opportunity to do so. Although it is
not clear from the record why trial defense counsel chose
not to question the members himself, he may have had other
tactical issues in mind, for example, not drawing the
members’ attention to the convening authority. Such
tactical decisions may be made in other cases as well,
strengthening the need for military judges to intervene
where there is even the mere possibility of unlawful
command influence. Had the military judge opted to inquire
himself, any question regarding unlawful command influence
might well have been resolved at the trial level.
III. Conclusion
Under this Court’s case law, the defense bears the
threshold burden of showing “some evidence” of unlawful
command influence before the burden shifts to the
government to rebut or negate the potential of such taint.
Biagase, 50 M.J. at 150. Absent such a showing of some
evidence, our case law has not assigned to the military
judge an independent duty to investigate allegations of
unlawful command influence. Therefore, I respectfully
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United States v. Harvey, No. 04-0801/MC
dissent from the majority’s application of Biagase to the
facts of this case.
However, as a matter of legal policy, I agree with the
disposition in this case. Military judges should have an
independent responsibility to look beyond counsel’s
arguments and test the facts where the unlawful command
influence door is left ajar and needs either to be opened
to let in the light or firmly closed. In this case, the
military judge could have, and should have, done more to
determine whether the members were influenced by the
presence of the original acting convening authority during
closing arguments, notwithstanding trial defense counsel’s
decision not to voir dire the members.
In light of my conclusion that there was no legal
error on Issue I, I agree with the majority’s conclusion
that Appellant has not demonstrated prejudice under Barker
v. Wingo, 407 U.S. 514, 532 (1972). In any event, assuming
Appellant was denied his due process right to timely review
and appeal, that error was harmless beyond a reasonable
doubt in this case. United States v. Allison, 63 M.J. 365
(C.A.A.F. 2006).
10