CAAF decided the Air Force case of United States v. Boyce, __ M.J. __, No. 16-0546/AF (CAAFlog case page) (link to slip op.), on Monday, May 22, 2017. A deeply-divided court concludes that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this case. And while the court finds no prejudice to Boyce, the majority "conclude[s] that an objective, disinterested observer with knowledge of all the facts would harbor a significant doubt about the fairness of the court-martial proceedings." Slip op. at 17. As a remedy CAAF sets aside Airman (E-2) Boyce's convictions of the rape and battery of his wife, authorizing a rehearing.
Judge Ohlson writes for the court, joined by Chief Judge Erdmann and Judge Sparks. Judge Stucky and Judge Ryan dissent, both writing separately.
CAAF reviewed a single issue:
The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority's subsequent referral of charges unlawfully influenced by the threat to his position and career?
The convening authority at issue was Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), he referred Airman Boyce's case for trial by general court-martial.
The briefs explained that numerous subordinates recommended that Franklin make that referral decision, including Boyce's Squadron Commander, the Staff Judge Advocate to the Special Court-Martial Convening Authority, the Special Court-Martial Convening Authority himself, and Lt Gen Franklin's Staff Judge Advocate. Nevertheless, Airman Boyce's defense asserted at trial, on appeal at the Air Force CCA, and finally to CAAF that the referral decision was the product of unlawful influence. CAAF's five judges are unanimous in their rejection of this claim of actual influence. But a bare majority of the court "deem[s] the totality of the circumstances in this case to be particularly troubling and egregious," slip op. at 17, and "conclude[s] that the appearance of unlawful command influence in this case cannot go unaddressed," slip op. at 18.
Leading this majority, Judge Ohlson provides a comprehensive review of CAAF's UCI jurisprudence, meticulously differentiating between "actual unlawful command influence and the appearance of unlawful command influence." Slip op. at 6 (emphases in original). He explains that:
[U]nlike actual unlawful command influence where prejudice to the accused is required, no such showing is required for a meritorious claim of an appearance of unlawful command influence. Rather, the prejudice involved in the latter instance is the damage to the public's perception of the fairness of the military justice system as a whole and not the prejudice to the individual accused.
Slip op. at 10. The dissenters, however, strongly disagree with this standard, though they clearly disapprove of the actions of Air Force officials that brought this issue before CAAF.
Judge Ohlson's majority opinion spends three and a half pages describing the facts and circumstances surrounding Lieutenant General Franklin's referral decision in this case. See slip op. at 2-5. The conclusion drawn from those facts provides perhaps the best summary:
[W]e conclude that members of the public would understandably question whether the conduct of the Secretary of the Air Force and/or the Chief of Staff of the Air Force improperly inhibited Lt Gen Franklin from exercising his court-martial convening authority in a truly independent and impartial manner as is required to ensure the integrity of the referral process. Indeed, we adopt Lt Gen Franklin's words as our own: "[It] would be foolish to say there is no appearance of UCI."
Slip op. at 17-18.
The legal test applied to these facts is, however, something rather new:
[T]he following process ensues when an appellant asserts there was an appearance of unlawful command influence. The appellant initially must show some evidence that unlawful command influence occurred. This burden on the defense is low, but the evidence presented must consist of more than mere allegation or speculation.
Once an appellant presents some evidence of unlawful command influence, the burden then shifts to the government to rebut the allegation. Specifically, the government bears the burden of proving beyond a reasonable doubt that either the predicate facts proffered by the appellant do not exist, or the facts as presented do not constitute unlawful command influence. If the government meets its burden, the appellant's claim of unlawful command influence will be deemed to be without merit and no further analysis will be conducted.
If the government does not meet its burden of rebutting the allegation at this initial stage, then the government may next seek to prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public's perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding. If the government meets its evidentiary burden at this stage of the analysis, then the appellant merits no relief on the grounds that there was an appearance of unlawful command influence. If the government does not meet its evidentiary burden, however, this Court will fashion an appropriate remedy.
Slip op. at 10-12 (marks and citations omitted). This test resembles CAAF's recently-clarified test for court-martial members: "an accused must be provided both a fair panel (Bartlett) and the appearance of a fair panel (Kirkland)." United States v. Ward, 74 M.J. 225, 228 (C.A.A.F. Jun. 11, 2015) (CAAFlog case page). For UCI, it seems, there must be neither actual influence (and prejudice) nor the appearance of influence that strains public perception of the military justice system.
The Government fails to meet that burden in this case because of the perception that Franklin as convening authority was not "truly independent and impartial as is required to ensure the integrity of the referral process." Slip op. at 18. This perception constitutes the appearance of UCI that "in this case cannot go unaddressed." Slip op. at 18. Yet because there was no individualized prejudice to Boyce, reversal with prejudice "would result in an improper windfall." Slip op. at 18 n.10. So the majority reverses without prejudice, authorizing a rehearing.
The dissenting opinions of Judges Stucky and Ryan mount separate attacks on the majority's reasoning.
First, Judge Stucky attacks the basic principle of Judge Ohlson's test for the appearance of UCI, asserting that it "makes little sense":
After finding no actual unlawful influence, the majority concludes that there is the appearance of unlawful command influence. To reach its conclusion, the majority relies on a test that, by its own terms, makes little sense: "'Thus, the appearance of unlawful command influence will exist where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding.'" United States v. Boyce, __ M.J. __, __ (9–10) (C.A.A.F. 2017) (quoting United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006)). But it is difficult to understand how an objective, disinterested, fully informed observer, knowing that there is no actual unlawful influence, "would harbor a significant doubt about the fairness of the proceeding."
Stucky, J. diss. op. at 1-2 (emphasis in original). Judge Stucky's dissent seems to be a very narrow reading of the concept of UCI that leaves little room for the existence of the appearance of UCI – as opposed to the existence of actual influence – as an error. But he doesn't explicitly go that far.
Judge Stucky does, however, find that Franklin was disqualified because he was an accuser:
Under the facts of this case, as ably recounted in the majority opinion, Lt Gen Franklin was a de facto accuser. He had an interest in the case that was other than official, viz., at what grade he would be retired. In such circumstances, he was disqualified from referring the case to trial and should have sent Appellant's case to a superior competent authority to determine whether to refer the case to trial.
Stucky, J. diss. op. at 2. But Judge Stucky finds that this error was waived when Boyce's defense counsel failed to raise it prior to entering his pleas. This is another narrow reading, as the defense did object to Franklin's referral decision (on the grounds of UCI).
Judge Ryan takes a no-harm-no-foul approach:
Without prejudice to the substantial rights of the accused from an error – hitherto defined as "'a reasonable probability that, but for the error, the outcome of the proceeding would have been different,'" United States v. Lopez, __ M.J. __, __ (4) (C.A.A.F. 2017) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016))—Article 59(a), UCMJ, prohibits us from affording relief. The majority ably points out that there is not one iota of prejudice to the accused in this case because "there is no reasonable likelihood that a different convening authority standing in the shoes of Lt Gen Franklin would have made a different referral decision." United States v. Boyce, __ M.J. __ , __ (13) (C.A.A.F. 2017). After finding no prejudice, however, the majority goes on to grant Appellant relief, despite the restriction that Article 59(a), UCMJ, places on this Court.
Ryan, J. diss. op. at 1. But Judge Ryan also "agree[s] with Judge Stucky that if there is no actual unlawful influence, 'it is difficult to understand how an objective, disinterested, fully informed observer' would doubt the fairness of the proceedings—at least in this case." Id. at 3 (citation omitted).
Judge Ryan does decry:
monkey business aplenty here with respect to Lt Gen Franklin, and I share the majority's frustration with "the chilling effect that the conduct of the Secretary of the Air Force and/or the Chief of Staff of the Air Force generally may have had on other convening authorities and in other criminal cases that are not before us."
Ryan, J. diss. op at 3 (citation omitted). Yet she would abide by the requirement of prejudice in Article 59 that "tether[s] appellate relief." Id.
CAAF is unanimously and obviously troubled by the pressure exerted on Lieutenant General Franklin as he performed his duties as a convening authority, and the majority's result undoubtedly rests on the unique facts of this case. But there's another case on CAAF's docket that raises similar concerns: that of Senior Chief Barry (discussed here and here). The convening authority in that case claims that he wanted to reverse the convictions when he acted on the result of trial, but didn't because of concerns of public perception and political repercussions.
It's a theme that often repeats itself in our polarized, politically-correct culture, and it causes many to harbor significant doubts about the fairness of court-martial proceedings. Judge Ohlson's majority opinion may well become a blueprint for defense counsel to litigate those doubts in future cases.
• AFCCA opinion
• Blog post: CAAF specifies an issue involving Air Force Lieutenant General Franklin
• Appellant's brief
• Appellee's (Government) brief
• Appellant's reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis
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