Court Martial Lawyers – Alexandra González-Waddington & Michael Waddington Attorneys at Law
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Influencing the independent discretion of the military judge
Prohibition
“No person subject to [the UCMJ] 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 . . . .” UCMJ, art. 37(a).
Efficiency Ratings
“[N]either the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge.” UCMJ art. 26(c).
In cases involving the military judge, the pressure will often come people other than the convening authority – like other military judges or staff judge advocates.
United States v. Rice, 16 M.J. 770 (A.C.M.R. 1983). Improper for DSJA to request that the senior judge telephone the magistrate to explain the seriousness of a certain pretrial confinement issue.
United States v. Mabe, 33 M.J. 200 (C.M.A. 1991). Senior judge’s letter, written to increase sentence severity, subjected judges to unlawful command influence.
United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976). Commander and SJA inquiries that question or seek justification for a judge’s decision are prohibited. United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006).
The trial counsel, in concert with the staff judge advocate, attacked the character of the military judge in voir dire, accusing her of having a social interaction (a date) with the civilian defense counsel that was on the case. The military judge denied the government challenge and the government filed a motion to reconsider, which she also denied. The defense filed a motion to dismiss based on UCI and prosecutorial misconduct and called the SJA, who testified that he advised the TC regarding trial tactics. The SJA also characterized an incident where the MJ and CDC were seen together as a “date.” The SJA was combative on the witness stand, including addressing comments to the CDC, interrupting the CDC, and arguing with the CDC.
The MJ recused herself because she could not remain impartial following the government’s attack on her character. A second MJ was detailed who also recused himself because he was “shocked and appalled” at the government’s conduct. A third judge heard an expedited defense motion, and a fourth judge presided over additional motions and trial. The trial judge granted a motion for a change of venue, disqualified the SJA and the convening authority from taking post-trial action in the case, and barred the SJA from attending the remainder of the trial.
CAAF found that improperly seeking recusal of the military judge was actual UCI. Because the trial counsel that was initially part of the UCI remained an active member of the prosecution, the government’s later actions and remedial steps were undermined. Further, a reasonable observer would have significant doubt about the fairness of this court-martial in light of the government’s conduct. Neither actual nor apparent unlawful command influence have been cured beyond a reasonable doubt in this case. CAAF dismissed the case with prejudice.
United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996). Unlawful command interference when commander placed accused into pretrial confinement in violation of trial judge’s ruling.
Real Costs of a COURT MARTIAL Conviction and Discharge
United States v. Campos, 42 M.J. 253 (C.A.A.F. 1995). The military judge said on the record that he believed he was relieved of his position as senior judge because his superiors believed he was giving lenient sentences. During voir dire, he said he thought he could still be fair. Based on extensive trial record, CAAF found no nexus between assignment of other judge and accused’s trial, that appearance taken care of at Art. 39(a) session and trial, and no abuse of discretion in not recusing himself.
United States v. Allen, 33 M.J. 209 (C.M.A. 1991). When making the decision to detail a judge to a case, a senior judge made the comment that a judge that was under consideration had a reputation for being a light sentencer and pro-defense. At a conference of SJAs, one session discussed “Problems with the Judiciary” where one of the action items was to approach the TJAG about how to deal with “inappropriate” judges. The court found that this raised the appearance of UCI, however, the UCI did not affect the proceeding.