2006
United
States v. Harvey, 64 M.J. 13 (when addressing command influence
issues, the
military judge’s duty is 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 or speculation; but because of the
congressional
prohibition against unlawful command influence and its invidious impact
on the
public perception of a fair trial, this threshold is low; 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;
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 influence or that the unlawful
command
influence did not affect the proceedings).
(once the defense carries the
burden of
raising an unlawful command influence issue, the 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).
(the law of unlawful command
influence
establishes a low threshold for the defense to present some evidence of
unlawful command influence).
United
States v. Lewis, 63 M.J. 405 (as a general matter, the defense has
the
initial burden of raising the issue of unlawful command influence; at
trial,
the defense meets its burden by showing 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).
(once the issue of unlawful
command
influence has been raised, the burden shifts to the government to
demonstrate
beyond a reasonable doubt either that there was no unlawful command
influence
or that the proceedings were untainted; this burden is high because
command
influence tends to deprive servicemembers of their constitutional
rights).
2004
United
States v. Gore, 60 MJ 178 (once the issue of unlawful
command
influence is raised, the 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).
2003
United
States v. Dugan, 58 MJ 253 (at trial and on
appeal, the
defense has the initial burden of producing sufficient evidence to
raise
unlawful command influence; the burden of proof is low, but more than
mere
allegation or speculation; the quantum of evidence required to raise
unlawful
command influence is some evidence; at trial, the accused must show
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; 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).
(where appellant has successfully raised the issue of unlawful
command
influence and a DuBay hearing is necessary to determine whether
unlawful
command influence existed during the sentencing phase of appellant’s
court-martial, it is the Government that must now rebut the presumption
of
unlawful command influence (1) by disproving the predicate facts on
which the
allegation of unlawful command influence is based; (2) by persuading
the DuBay
judge that the facts do not constitute unlawful command influence; or
(3) by
persuading the DuBay judge that the unlawful command influence
had no
prejudicial impact on the court-martial; whichever tactic the
Government
chooses, the quantum of evidence required is proof beyond a reasonable
doubt).
United
States v. Simpson, 58 MJ 368 (our cases
provide a
specific procedure for use at trial to address allegations of actual
unlawful
command influence; first, the defense must show facts which, if true,
constitute unlawful command influence; second, the defense must show
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; the threshold for raising the issue at trial is low, but
it is
more than mere allegation or speculation; the defense is required to
present
some evidence of unlawful command influence; third, if the defense has
made the
requisite showing under the first two steps, the burden shifts to the
Government to: (1) disprove the predicate facts on which the allegation
of
unlawful command influence is based; (2) persuade the military judge
that the
facts do not constitute unlawful command influence; or (3) prove at
trial that
the unlawful command influence will not affect the proceedings;
whichever
tactic the Government chooses, the quantum of proof is beyond a
reasonable
doubt).
(depending on the nature of the alleged unlawful command influence and
other
pertinent circumstances, the Government may demonstrate that unlawful
command
influence will not affect the proceedings in a particular case as a
result of
ameliorative actions; such actions might include transfer of
responsibility for
disposition of charges to commanders not subject to the influence,
orders
protecting servicemembers from retaliation, changes in venue, liberal
grants of
challenges for cause, and the use of discovery and pretrial hearings to
delineate the scope and impact of alleged unlawful command influence).
(for appellate consideration of command influence, the defense 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; in the course of addressing these issues,
appellate courts must consider apparent as well as actual unlawful
command
influence).
(where the vast majority of the comments made by the senior military
and
civilian officials were not particularly remarkable and where the
overall tenor
of statements made by senior officials did not constitute an express or
implied
command position on disposition or adjudication, appellant failed to
meet his
burden of demonstrating that the general tenor of the leadership’s
interaction
with the media demonstrated either the intent to improperly influence
the
court-martial process or the appearance of such an influence; to the
extent
that appellant relies upon specific comments in the media by persons
outside
the chain of command, including Members of Congress, appellant failed
to show
that the personnel involved in the disposition of charges or on the
court-martial panel were aware of such comments or that such comments
could
reasonably be perceived as carrying the force of command influence).
(where the record of trial indicates that the persons involved in
appellant's case understood that the military leadership's discussion
in
command publications and instructional programs of a "zero tolerance"
policy on sexual harassment stood for the proposition that allegations
of
sexual harassment should not be ignored, but did not require a
particular
disposition, appellant failed to demonstrate that the phrase "zero
tolerance" raised the issue of unlawful command influence; moreover,
assuming that appellant met his burden, the testimony of the forwarding
and
referring authorities, as well as responses of the panel members on
voir dire,
demonstrated beyond a reasonable doubt that appellant’s trial was not
prejudiced by references to the Army’s "zero tolerance" policy under
the particular circumstances of this case).
(where the testimony of the officers involved in the disposition
decision
and the answers of the panel members during voir dire demonstrated that
the
persons responsible for prosecutorial discretion and adjudication in
appellant’s court-martial were either completely unaware of the use by
senior
military and civilian leadership of phrases such as "no leniency" and
"severe punishment" and of conclusions that there had been an
"abuse of power" and there was "no such thing as consensual sex
between drill sergeants and trainees," or had only a vague recollection
of
such comments by the senior leadership, where none of these statements
were
transmitted directly to persons involved in the court-martial process,
nor were
they communicated through command channels, and where the phrases at
issue were
not otherwise repeated or disseminated in a manner so direct or
pervasive as to
undermine the reasonableness of the assertions by persons involved in
appellant’s court-martial either that they were not aware of such
comments or
that they did not regard the media reports as reflecting command
policy, the
Government demonstrated beyond a reasonable doubt that the few media
stories in
which these phrases appeared did not taint appellant’s court-martial
with
unlawful command influence).
(in light of the following circumstances, the Government adequately
demonstrated that appellant’s trial was not tainted by the appearance
of
unlawful command influence: (1) the early action to transfer appellant
to
another jurisdiction in light of the potentially improper statements by
the
unit's commander; (2) the decision to compose the court-martial panel
from
persons outside the unit; (3) the order of the military judge shielding
members
from media stories about the investigation; (4) the wide variety of
disposition
decisions in related cases growing out of the investigation at the
base,
including dismissal of charges, nonjudicial punishment, administrative
discharge, and referral to special as well as general courts-martial;
(5) the
extensive ventilation of the unlawful command influence allegations at
trial
through testimony, documentary evidence, briefs, arguments of counsel,
and a
detailed written decision by the military judge, all of which focused
on the
impact on subordinate commanders and panel members; and (6) the fact
that the
defense did not seek a change of venue due to the pretrial publicity or
unlawful command influence, nor did the defense challenge any of the
panel
members on the basis of potential exposure to pretrial publicity or
unlawful
command influence).
2002
United
States v. Stoneman, 57 MJ 35 (there is an
established
analytical framework for resolving claims of unlawful command
influence: (1) at
trial, the initial burden is on the defense to "raise" the issue by
"some evidence", i.e., facts that, if true, constitute
unlawful command influence, and the defense must show that the unlawful
command
influence has a logical connection to the court-martial in terms of
potential
to cause unfairness in the proceedings; (2) once the issue is raised,
the
burden shifts to the Government to show either that there was no
unlawful
command influence or that any unlawful command influence did not taint
the
proceedings).
(if the Government elects to show that there was no unlawful command
influence, it may do so either by disproving the predicate facts on
which the
allegation of unlawful command influence is based, or by persuading the
military judge that the facts do not constitute unlawful command
influence; if
Government chooses to not disprove the existence of unlawful command
influence,
it must prove that the unlawful command influence will not affect the
proceedings - whichever tactic the Government chooses, the quantum of
evidence
required is proof beyond a reasonable doubt).
(the quantum of proof required under RCM 912(f)(3) to support a
causal
challenge is higher than the "some evidence" required to raise an
issue of unlawful command influence; thus, a military judge’s
determination
that the defense has not sustained the greater burden of establishing a
challenge under RCM 912(f)(3) does not answer the question whether the
defense
has met the lesser burden of presenting "some evidence" of unlawful
command influence, thereby shifting the burden to the Government).
2001
United
States v. Baldwin, 54 MJ 308 (the quantum of
evidence
necessary to raise unlawful command influence is the same as that
required to
submit a factual issue to the trier of fact; it must, however, be more
than
mere speculation).
(in the absence of evidence to the contrary, appellant’s allegations
were
sufficient to raise a post-trial issue of unlawful command influence
where: (1) appellant’s post-trial statement was based on
her own
observations; (2) the post-trial statement was detailed in nature; and
(3) the
record of trial, containing an unexplained delay at a specific point in
time,
could be viewed as tending to corroborate an allegation that there was
a
command meeting at that time).
2000
United
States v. Johnson, 54 MJ 32 (the initial burden of
raising
evidence of command influence is on the defense; proof of command
influence in
the air will not suffice).
(once raised by evidence, the appearance or existence of unlawful
command
influence creates a rebuttable presumption of prejudice).
United
States v. Ayers, 54 MJ 85 (when asserting unlawful
command
influence, the initial burden is on the defense to show facts which, if
true,
constitute unlawful command influence; at trial, the defense must show
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).
(when asserting unlawful command influence, the initial burden is on
the
defense to show facts which, if true, constitute unlawful command
influence; on
appeal, the defense must show that the proceedings appeared to be
unfair and
that the unlawful command influence was the cause of the appearance of
unfairness).
(the quantum of evidence required to raise the issue of unlawful
command
influence is some evidence; more than mere allegation or speculation).
1999
United
States v. Biagase, 50 MJ 143 (the defense has the
initial burden
of raising unlawful command influence at trial by showing 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), and on appeal by
presenting
some evidence showing: (1) facts which, if true, constitute
unlawful
command influence; (2) that the proceedings were unfair; and (3) that
the
unlawful command influence was the cause of the unfairness)
(once unlawful command influence is raised, either at trial or on
appeal,
the burden shifts to the government to show, beyond a reasonable doubt,
either
that there was no unlawful command influence or that the unlawful
command
influence will not affect the proceedings, and the government may meet
that
burden by: (1) disproving the predicate facts upon which the
allegation
of unlawful command influence is based; (2) persuading the military
judge or
appellate court that the facts do not constitute unlawful command
influence;
(3) producing, at trial, evidence proving that the unlawful command
influence
will not affect the proceedings; or (4) by persuading an appellate
court on
appeal that the unlawful command influence had no prejudicial impact on
the
court-martial).