Indirect or unintended influence
United States v. Treakle, 18 M.J. 646 (A.C.M.R. 1984). CG addressed groups over several months on the inconsistency of recommending discharge-level courts and then having leaders testify that the accused was a “good soldier” who should be retained. The message received by many was “don’t testify for convicted soldiers.” The guilty plea was affirmed but the sentence was reversed. See also United States v. Glidewell, 19 M.J. 797 (A.C.M.R. 1985); United States v. Thomas, 22 M.J. 388 (C.M.A. 1986); United States v. Giarratano, 20 M.J. 553 (A.C.M.R. 553); United States v. Souther, 18 M.J. 795 (A.C.M.R. 1984) (related cases).
United States v. Francis, 54 M.J. 636 (A. Ct. Crim. App. 2000). Accused’s squad and platoon leaders told other NCOs and soldiers in the unit to stay away from the accused and they feared “trouble by association.” Without ruling that those facts did or did not amount to some evidence of UCI, the court found that the government satisfied its burden under Biagase.
United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998) (companion case to Griffin, discussed in the Accusatorial UCI section, below). In addition to a command policy letter that has UCI issues (but which was quickly remedied), the battery commander said at a PT formation that there were drug dealers in the battery and that Soldiers should stay away from those involved with drugs. The CG ordered a 15-6 investigation when he learned about that and the company commander retracted his statements at another formation. Later, the trial counsel directed that the command should interview some potential alibi witnesses and had the commander read the witnesses their rights. The military judge conducted exhaustive fact finding and found no actual UCI. CAAF said that it had no reason to believe that the military judge was affected by UCI, and the appellant had not raised an issue that he chose a judge alone trial because he was concerned about having his panel tainted by UCI. While some evidence of UCI was raised, the court was satisfied beyond a reasonable doubt (particularly because of the thorough actions taken by the military judge) that the proceeding was not affected by UCI.
United States v. Drayton, 45 M.J. 180 (C.A.A.F. 1996). The appellant was convicted of shoplifting from the PX. Two weeks after he was charged with shoplifting, the battalion commander held an NCOPD where he showed the NCOs security tapes from the PX (but not the ones he was in). Six witnesses testified for the appellant during sentencing. The court found that this amounted to just a bare allegation because there was no allegation that any witness was actually influenced.
United States v. Ashby, 68 M.J. 108 (C.A.A.F 2009). The appellant did not show that comments made by senior officials following the Aviano gondola incident amounted to some evidence of UCI.
B. Panel member composition. Court-martial stacking is a form of unlawful command influence.
United States v. Upshaw, 49 M.J. 111 (C.A.A.F. 1998). The issue is the convening authorities intent. If the motive for choosing a certain panel composition (even if mistaken) is benign, then systematic inclusion or exclusion of certain members may not be improper. In this case, the exclusion of some members was just a mistake, so no UCI. See also United States v. McKinney, 61 M.J.767, (A.F.Ct. Crim. App. 2005).
United States v. White, 48 M.J. 251 (C.A.A.F. 1998). Convening authority’s memo directing subordinate commands to nominate “best and brightest staff officers,” and that “I regard all my commanders and their deputies as available to serve as members” did not constitute court packing.
United States v. McClain, 22 M.J. 124 (C.M.A. 1986). The staff judge advocate excluded junior members because he believed that they were more likely to adjudge light sentences. This belief came from discussion with past panel members, and the convening authority considered recent, unusually light sentences at the time that he made his selections. The court reversed the sentence (the trial was a guilty plea before a panel).
United States v. Redman, 33 M.J. 679 (A.C.M.R. 1991). After a series of results that they disagreed with, the SJA and trial counsel decided to try to exclude certain members from the panel through the use of peremptory challenges. When the military judge denied these challenges, the SJA decided to shuffle the panel. After an investigation, the higher level commander withdrew the original convening authority’s power to convene courts. While the initial convening authority’s actions were UCI, the accused was tried by a new panel that was not tainted by the UCI so no prejudice.
United States v. Brocks, 55 M.J. 614 (A.F.Ct. Crim App. 2001). Base legal office intentionally excluded all officers from the Medical Group from the list of court member nominees sent to the convening authority. The SJA and chief of justice based this action on fact that all four alleged conspirators to distribute cocaine and many witnesses came from the Medical Group. Decision to exclude came from desire to avoid conflicts and unnecessary challenges for cause. The exclusion of the Group nominees did not constitute UCI. Motive of SJA and staff was to protect the fairness of the court-martial, not to improperly influence it.