United States v. Harvey

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 2 United States v. Harvey, No. 04-0801/MC

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 3 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 4 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.

5 United States v. Harvey, No. 04-0801/MC

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.

6 United States v. Harvey, No. 04-0801/MC 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 7 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 8 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 9 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