United States v. Douglas ( 2010 )

UNITED STATES, Appellee
v.
Adam D. DOUGLAS, Senior Airman
U.S. Air Force, Appellant
No. 09-0466
Crim. App. No. S31059
United States Court of Appeals for the Armed Forces
Argued October 14, 2009
Decided February 23, 2010
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, J., joined. BAKER and STUCKY, JJ., each
filed a separate dissenting opinion.
Counsel
For Appellant: Terri R. Zimmermann, Esq. (argued); Captain
Marla J. Gillman (on brief); Major Lance J. Wood and Major
Shannon A. Bennett.
For Appellee: Major Coretta E. Gray (argued); Colonel Douglas
P. Cordova, Lieutenant Colonel Jeremy S. Weber, and Gerald R.
Bruce, Esq. (on brief).
Military Judge: Nancy J. Paul
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Douglas, No. 09-0466/AF
Judge RYAN delivered the opinion of the Court.
In this case the military judge found unlawful command
influence and then crafted a remedy in which Appellant not only
appeared to acquiesce but actively participated. The military
judge also gave Appellant a continuance to avail himself of the
remedy and then inquired as to whether Appellant wished to raise
any further issues on the matter. Appellant raised none.
Appellant now alleges that the military judge reversibly erred
by crafting a remedy for unlawful command influence instead of
dismissing the charges against him.1 We disagree, and hold that
the military judge’s decision to craft a remedy was within the
bounds of her discretion.
If the record disclosed that the reasonable remedy had been
implemented in full, Appellant’s participation in and apparent
acquiescence at trial to the remedy crafted and Appellant’s
disavowal of any claim of ineffective assistance of counsel
would end the inquiry. However, because the record does not
disclose whether the remedy crafted by the military judge was
actually implemented in full, under the facts of this case we
devolve to the ordinary test whether unlawful command influence
1
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE REVERSIBLY ERRED WHEN SHE
DID NOT DISMISS THE CHARGES AND SPECIFICATIONS AFTER
SHE FOUND THAT UNLAWFUL COMMAND INFLUENCE EXISTED IN
THIS CASE.
2
United States v. Douglas, No. 09-0466/AF
deprived Appellant of access to character witnesses. United
States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining
the government’s burden to establish beyond a reasonable doubt
that defense access to witnesses was not impeded by unlawful
command influence). We are not convinced beyond a reasonable
doubt that Appellant was not thus prejudiced. United States v.
Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a
reasonable doubt the correct quantum of proof applicable to
issues of unlawful command influence). Accordingly, we overturn
the United States Air Force Court of Criminal Appeals.
I. Facts
A special court-martial composed of a military judge
sitting alone convicted Appellant, contrary to his pleas, of
failing to go to his appointed place of duty at the time
prescribed, violating a lawful general regulation, dereliction
of duty, making a false official statement, distribution of
methamphetamine, carnal knowledge, and sodomy of a child under
the age of sixteen years, in violation of Articles 86, 92, 107,
112a, 120, and 125, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 886, 892, 907, 912a, 920, 925 (2000), respectively.
The sentence adjudged by the military judge and approved by
the convening authority included a bad-conduct discharge,
confinement for twelve months, and reduction to the grade of
E-1. Appellant was given sixty days of confinement credit to
3
United States v. Douglas, No. 09-0466/AF
compensate for illegal pretrial punishment. The CCA found no
prejudicial error and affirmed. United States v. Douglas, No.
ACM S31059, 2009 CCA LEXIS 41, at *32, 2009 WL 289705, at *11
(A.F. Ct. Crim. App. Jan. 28, 2008) (unpublished).
The charges at issue in this appeal stem from Appellant’s
conduct when he was stationed as a military recruiter in Butte,
Montana. Appellant, at the time a senior airman (SrA), was
supervised by Master Sergeant (MSgt) William Bialcak, the senior
recruiter at the Butte recruiting office. In December 2003, an
investigation into Appellant’s alleged misconduct began. MSgt
Bialcak heard of the investigation and, on May 6, 2004, ordered
Appellant not to contact any witness who was part of the ongoing
investigation into his alleged misconduct. MSgt Bialcak issued
a second order on May 11, 2004, prohibiting Appellant from
contacting any members of his unit for non-work-related reasons
without MSgt Bialcak’s prior approval. While the investigation
was ongoing, MSgt Bialcak openly disparaged Appellant, expressed
his certainty of Appellant’s guilt to co-workers within the
recruiting station and surrounding federal building, and
intimidated potential witnesses from providing character
references for Appellant. MSgt Bialcak also intimidated
Appellant into not filing a report with the Inspector General
regarding these actions.
4
United States v. Douglas, No. 09-0466/AF
On August 16, 2005, Appellant moved to dismiss the charges
and specifications against him on the ground that MSgt Bialcak’s
orders and actions constituted unlawful command influence by
creating a hostile environment that made it unlikely that
Appellant’s colleagues would speak on his behalf.2 On August 18,
2005, the motion to dismiss was heard during an Article 39(a),
UCMJ, 10 U.S.C. § 839(a) (2000), session. After reviewing the
evidence presented, the military judge examined the effect of
MSgt Bialcak’s two May 2004 no-contact orders and found that
although “there was no direct evidence the Accused was hindered
in presenting a defense or that the outcome of his court-martial
[was] affected by these orders,” MSgt Bialcak’s orders had the
potential to impact Appellant’s “ability to collect character
statements on his behalf” from his co-workers. The military
2
The prohibition against unlawful command influence arises from
Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2006), which provides
in relevant part:
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 exercise of its or
his functions in the conduct of the proceeding. 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, or the action of any convening,
approving, or reviewing authority with respect to his
judicial acts.
5
United States v. Douglas, No. 09-0466/AF
judge next examined the effect on the court-martial of MSgt
Bialcak’s “negative attitude and unpleasant demeanor toward the
Accused.” She found that MSgt Bialcak’s behavior resulted in “a
hostile atmosphere” within both the recruiting office and the
federal office building in which it was housed. She identified
three co-workers who had been affected by MSgt Bialcak’s
behavior:
Mrs. Tomlinson [one of MSgt Bialcak’s subordinates]
testified that she did not submit a statement on the
Accused’s behalf, which would have been favorable if
she had done so, because she was afraid that MSgt
Bialcak would be angry with her . . . . There was
testimony that SSgt Austin [another of MSgt Bialcak’s
subordinates] . . . was apprehensive about providing a
character statement on his behalf. Don Rose [who
maintained the federal building where MSgt Bialcak and
SrA Douglas worked] also testified that he felt that
there would be negative consequences should he provide
a character statement. These witnesses testified that
they, and others they knew of, were discouraged from
providing character statements for the Accused because
of possible repercussions from MSgt Bialcak.
Based on these findings of fact, the military judge
concluded that MSgt Bialcak’s actions resulted in unlawful
command influence by discouraging witnesses from providing
character statements on Appellant’s behalf. However, the
military judge concluded that although the evidence showed
unlawful command influence that could affect Appellant’s
sentence, “the evidence was not sufficient to show that this
unlawful command influence would potentially affect the findings
of the Accused’s court-martial.” (emphasis added). The motion
6
United States v. Douglas, No. 09-0466/AF
to dismiss was denied and a remedy was crafted to overcome the
effects of the unlawful command influence.
The remedy consisted of several parts. The military judge
ordered a continuance so that trial and defense counsel would
have the opportunity to, among other things, jointly author a
memorandum directed at potential character witnesses. The
memorandum, which was to be written in the name of Appellant’s
commanding officer, was to be “utilized by defense counsel and
the [a]ccused to facilitate the securing of character statements
on behalf of the [a]ccused.” The continuance was to last for a
period of time to “be determined by the Court, subsequent to the
finalization and approval of the memorandum.” Further, the
military judge made several “strong recommendation[s]” designed
to remove Appellant from MSgt Bialcak’s supervision, prevent
MSgt Bialcak from discussing the case with anyone except trial
and defense counsel, and rescind MSgt Bialcak’s previously
issued no-contact orders.
She then provided counsel with an opportunity to question
or state an objection regarding the memorandum, told counsel
that she was continuing the court-martial until counsel were
ready to proceed, and gave both parties another opportunity to
express any concern regarding the production of witnesses or
identify other unresolved issues.
7
United States v. Douglas, No. 09-0466/AF
The continuance lasted over seventy days, and hearings on
the merits began on November 1, 2005. At that time, the
military judge questioned defense counsel regarding the
memorandum that had been, as ordered, jointly authored by
defense and trial counsel in the name of Appellant’s commander
and then reviewed by the military judge:3
MJ: And another area that we need to take up is when
the court recessed in August, in response to the
court’s ruling regard [sic] the defense motion to
dismiss, I requested counsel prepare a memorandum to
be signed by Lieutenant Colonel Young, who was the
accused’s commander. I requested that they forward
that to me. They did so. Some modifications were
done back and forth between all parties, and we did
come up with a final memorandum. What I will do, the
-- that memorandum was provided to all counsel.
And I should ask [defense counsel] Captain
Williams, did the defense receive a copy of that
memorandum for their use?
DC: We did, Your Honor.
Defense counsel raised no objection as to the effectiveness
of the memorandum. When the military judge provided counsel the
3
The memorandum was addressed to all persons who knew Appellant,
either personally or professionally, in the name of Appellant’s
commander. The memorandum stated, in relevant part:
I can assure you that no negative actions will be
initiated by anyone should they elect to assist in SrA
Douglas’ defense. Any assistance you provide SrA
Douglas is, to the contrary, very welcome and strongly
encouraged. . . . If at any time you are approached by
anyone attempting to pressure you, direct or
otherwise, into a decision whether or not to testify
or provide a letter of support on behalf of SrA
Douglas, I ask you to immediately report the incident
. . . .
8
United States v. Douglas, No. 09-0466/AF
opportunity to voice any concerns that had arisen since August
or to raise additional motions, defense counsel responded,
“Nothing at this time, Your Honor.”
Appellant was subsequently found guilty and sentenced. On
appeal to the CCA, Appellant asserted, among other things, that
the military judge erred by not dismissing the charges and
specifications after finding unlawful command influence and
erred further when she found that the unlawful command influence
would not affect the findings stage of the trial. Douglas, 2009
CCA LEXIS 41, at *2, 2009 WL 289705, at *1. The CCA disagreed
that dismissal was mandated but agreed that the military judge
erred in holding that the unlawful command influence could only
have negatively impacted the sentencing portion of the trial.
Id. at *12-*14, 2009 WL 289705, at *5. The CCA determined that
but for MSgt Bialcak’s influence, Appellant might have been able
to more effectively pursue a good military character defense
during the findings portion of his court-martial. Id. at *13,
2009 WL 289705 at *5.
Notwithstanding this error, however, the CCA found no
prejudice because (1) there was no abuse of discretion in the
type of corrective action chosen by the military judge, and (2)
the corrective action was “ultimately implemented in a manner
broad enough to dissipate any potential taint as to both
findings and sentence.” Id. at *14, 2009 WL 289705, at *5
9
United States v. Douglas, No. 09-0466/AF
(emphasis in original). The CCA found that the corrective
action provided the opportunity to the defense -- had it so
chosen -- to execute a trial strategy that included presentation
of good character evidence during both the findings and
sentencing phases of the trial. Id. at *14-*15, 2009 WL 289705,
at *5.
II. Discussion
The issue granted is whether the military judge erred by
choosing a remedy other than dismissal after finding that MSgt
Bialcak’s no-contact orders and negative behavior discouraged
witnesses from providing character statements for Appellant and
resulted in unlawful command influence. We agree with the CCA
that there was no abuse of discretion in the type of corrective
action decided upon by the military judge.4 However, once
unlawful command influence is raised at the trial level, as it
was here, a presumption of prejudice is created. Biagase, 50
M.J. at 150. To affirm in such a situation, we must be
convinced beyond a reasonable doubt that the unlawful command
influence had no prejudicial impact on the court-martial. Id.
at 150-51. Although this is a close case, on the record we have
here we are not so convinced.
4
We also agree with the CCA that the impact of the unlawful
command influence extended to both the findings and sentencing
portions of the trial.
10
United States v. Douglas, No. 09-0466/AF
A.
Article 37(a), UCMJ, prohibits unlawful command influence.
This prohibition includes attempts to interfere with access to
witnesses. See United States v. Gore, 60 M.J. 178, 185
(C.A.A.F. 2004) (condemning unlawful command influence directed
against prospective witnesses); United States v. Stombaugh, 40
M.J. 208, 212-13 (C.M.A. 1994) (same). Dismissal of the charges
is one alternative if unlawful command influence is found.
Gore, 60 M.J. at 187.
In a case involving unlawful command influence, we review
issues involving a military judge’s decision not to dismiss for
abuse of discretion. Id. Under this standard, “‘when judicial
action is taken in a discretionary matter, such action cannot be
set aside by a reviewing court unless it has a definite and firm
conviction that the court below committed a clear error of
judgment in the conclusion it reached upon a weighing of the
relevant factors.’” Id. (quoting United States v. Houser, 36
M.J. 392, 397 (C.M.A. 1993)). We grant a military judge broad
discretion in crafting a remedy to remove the taint of unlawful
command influence, and we will not reverse “so long as the
decision remains within that range.” Id. (citation omitted).
This Court has recognized that “a military judge can
intervene and protect a court-martial from the effects of
unlawful command influence.” Biagase, 50 M.J. at 152 (citing
11
United States v. Douglas, No. 09-0466/AF
United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998)). We have
looked with favor on military judges taking proactive, curative
steps to remove the taint of unlawful command influence and
ensure a fair trial. See, e.g., id. (approving of the military
judge’s forceful and effective discharge of his duties to
protect the court-martial from unlawful command influence);
Rivers, 49 M.J. at 444 (approving of the military judge’s
detailed and case-specific remedies that ensured the appellant’s
trial was untainted by unlawful command influence). As a last
resort, a military judge may consider dismissal “when necessary
to avoid prejudice against the accused.” Gore, 60 M.J. at 187.
“[D]ismissal of charges is appropriate when an accused would be
prejudiced or no useful purpose would be served by continuing
the proceedings.” Id. (citing United States v. Green, 4 M.J.
203, 204 (C.M.A. 1978)). However, we have noted that “[w]hen an
error can be rendered harmless, dismissal is not an appropriate
remedy.” Id. (citing United States v. Mechanik, 475 U.S. 66(1986)). Dismissal “is a drastic remedy and courts must look to
see whether alternative remedies are available.” Id. (citation
omitted); see also United States v. Cooper, 35 M.J. 417, 422
(C.M.A. 1992).
We find the specifically tailored nature of the remedy and
Appellant’s silence during and after the creation of the remedy
instructive to our conclusion that the military judge acted
12
United States v. Douglas, No. 09-0466/AF
within her discretion in crafting a remedy aimed at ameliorating
the effects of MSgt Bialcak’s actions rather than dismissing the
charges. The military judge, after evaluating defense counsel’s
pretrial motion to dismiss, identified MSgt Bialcak’s no-contact
orders and his publicly and forcefully expressed negative
attitude toward Appellant as unlawful command influence that
could have discouraged potential witnesses from providing
character statements on Appellant’s behalf. She then arrived at
a remedy tailored to remove both roadblocks to obtaining
character statements and any remaining specter of unlawful
command influence. In total, the remedy consisted of: (1)
providing a continuance to enable trial and defense counsel to
co-author a memorandum from Appellant’s commanding officer; (2)
making the memorandum available to the defense; (3) allowing the
defense to decide on the memorandum’s use and to pursue such
witnesses as it chose; and (4) “strong[ly] recommend[ing]” that
(a) Appellant be removed from MSgt Bialcak’s supervision and
assigned to another office selected by Appellant’s commander,5
(b) MSgt Bialcak be issued an order from his commander to
immediately cease and desist communications regarding Appellant
and the investigations, charges, and court-martial, and (c) the
5
We note, however, that even though the military judge
recommended that Appellant be removed from MSgt Bialcak’s
supervision by transferring Appellant, it would have been at
least as reasonable to transfer MSgt Bialcak, the source of the
unlawful command influence.
13
United States v. Douglas, No. 09-0466/AF
Government immediately rescind both the cease and desist order
and the order prohibiting Appellant from contacting members of
his unit. While the memorandum alone would not have been enough
to alleviate other impediments to Appellant obtaining witness
statements -- such as the no-contact orders and continued
comments and interference by MSgt Bialcak -- collectively, these
actions were reasonably tailored to alleviate the harm in this
case.
By not objecting during trial, defense counsel appeared to
indicate his satisfaction with the potential efficacy of this
remedy. This finding is bolstered by the fact that Appellant
raises no claim for ineffective assistance of counsel here. On
balance, we find the decision of the military judge not to
dismiss the case in favor of attempting to remedy the unlawful
command influence to be well within the bounds of her
discretion.
B.
We remain vigilant, however, against unlawful command
influence, which this Court has called “the mortal enemy of
military justice.”6 United States v. Lewis, 63 M.J. 405, 407
(C.A.A.F. 2006) (quotation marks and citations omitted). While
6
Unlawful command influence is not the “mortal enemy” of the
military justice system because of the number of cases in which
such influence is at issue, but rather because of the
exceptional harm it causes to the fairness and public perception
of military justice when it does arise.
14
United States v. Douglas, No. 09-0466/AF
the military judge stands watch as the “last sentinel” in the
military justice system, United States v. Harvey, 64 M.J. 13, 14
(C.A.A.F. 2006) (quotation marks and citations omitted), once
unlawful command influence is raised pretrial or at trial, the
responsibility to protect the military justice system against
unlawful command influence is not one unilaterally thrust upon
the shoulders of the military judge. Rather, it is a shared
responsibility. Id. at 17-18. The military judge, having
crafted a reasonable remedy, is not required, in the face of
apparent satisfaction from the defense, to intuit possible
objections for the defense and then raise them sua sponte.
Herein lies the difficulty of this case: on the one hand,
the military judge, acting within her discretion, crafted a
remedy that would -- if fully implemented -- satisfy concerns
about the effect of unlawful command influence in this case, and
defense counsel -- after a lengthy continuance -- had no further
objections or motions and did not request additional time. On
the other hand, the burden of proof is on the Government, and
the record does not itself reveal that all portions of the
remedy crafted were implemented. Thus, while Appellant’s
acquiescence and silence are factors to consider -- factors that
15
United States v. Douglas, No. 09-0466/AF
make this a close case on this record7 -- given that the burden
of proof is on the Government, Gore, 60 M.J. at 186, we cannot
be convinced beyond a reasonable doubt that the taint from the
unlawful command influence did not prejudice Appellant.
The particular harm from the unlawful command influence in
this case was that but for MSgt Bialcak’s influence, Appellant
might have been able to more effectively pursue a good military
character defense during the findings and sentencing portions of
his court-martial. The remedy as a whole was a reasonable and
tailored means to combat that harm. But while the letter in the
name of the commanding officer was drafted and available for use
by the defense, the record does not reveal whether Appellant’s
commanding officer followed the remaining remedies crafted by
the military judge regarding the orders MSgt Bialcak had
previously issued. The record is unclear as to whether
Appellant’s commander either issued an order forbidding MSgt
Bialcak from discussing the case with anyone except trial and
defense counsel or rescinded the no-contact orders that
precluded Appellant from contacting witnesses.
The record does reveal, however, that none of the
witnesses that testified on the unlawful command influence
motion that they were discouraged from providing character
7
We note that this Court has not applied the doctrine of waiver
where unlawful command influence is at issue. United States v.
Johnston, 39 M.J. 242, 244 (C.M.A. 1994).
16
United States v. Douglas, No. 09-0466/AF
statements by MSgt Bialcak testified at trial. And the
record does not otherwise demonstrate that unlawful command
influence did not deprive Appellant of favorable character
witnesses. See, e.g., Gleason, 43 M.J. at 74-75 (noting
that the government could disprove the effect of unlawful
command influence on obtaining character witnesses by
showing that: (1) the appellant in fact offered character
evidence at trial; (2) there either was no evidence of good
character available or that readily available rebuttal
evidence of bad character made raising good character
tactically implausible; or (3) the prosecution evidence at
trial was so overwhelming that character evidence could not
have had an effect (citing United States v. Thomas, 22 M.J.
388, 396-97 (C.M.A. 1986))).
Here, Appellant presented no favorable character testimony
during his court-martial, the Government has not shown that
presentation of a good character defense was unfeasible, and the
Government has not met its burden of showing that the character
evidence would have been completely ineffective. Further, the
record reveals that Appellant maintained his innocence even
after his conviction8 and that much of the evidence against him
8
During the sentencing portion of the court-martial, for
example, defense counsel again discussed the effect of MSgt
Bialcak’s behavior on Appellant’s defense: “He was ordered to
stop talking with people, to stop assisting in his own defense,
17
United States v. Douglas, No. 09-0466/AF
came solely from the victim’s own testimony. Thus, despite the
theoretical efficacy of the crafted remedy -- and while this
would be a different case if evidence in the record indicated
that the remedy had been implemented in full -- on this record
we cannot say we are convinced beyond a reasonable doubt that
Appellant was not deprived of the benefit of testimony from
character witnesses as a result of the unlawful command
influence.
When a military judge crafts a reasonable and tailored
remedy to remove unlawful command influence, and if the record
reflects that the remedy has been implemented fully and no
further objections or requests were made by the defense, then
rather than requiring the government to prove a negative we
would be satisfied that the presumptive prejudice had been
eliminated.9 See Biagase, 50 M.J. at 150. However, as in this
case, when the record fails to include evidence that key
components of the remedy were implemented, the presumption of
prejudice flowing from the unlawful command influence has not
been overcome. The government must then find an alternative way
to meet its burden. See, e.g., Gleason, 43 M.J. at 74-75.
an investigation that had been going on for two years, he was
told to stop doing that. . . . This case is about an airman who
was convicted before he ever set foot in the courtroom two years
ago.”
9
This would be true even if an appellant did not pursue a good
military character defense as there are tactical considerations,
apparent or not, which could influence that decision.
18
United States v. Douglas, No. 09-0466/AF
III. Conclusion
The decision of the United States Air Force Court of
Criminal Appeals is reversed and the findings and sentence are
set aside. A rehearing may be ordered. The record of trial is
hereby returned to the Judge Advocate General of the Air Force
who shall refer the case to an appropriate convening authority
to determine if a rehearing is practicable. If the convening
authority determines that a rehearing is impracticable, the
charges shall be dismissed.
19
United States v. Douglas, No. 09-0466/AF
BAKER, Judge (dissenting):
While the unlawful command influence in this case was
manifest, this is a close case on prejudice. One reason the
prejudice call is a close one is because the manner in which the
unlawful command influence issue was litigated does not fit
neatly into the United States v. Biagase, 50 M.J. 143, 151
(C.A.A.F. 1999), framework. Specifically, under Biagase once
unlawful command influence is found, the burden shifts to the
government to disprove prejudice beyond a reasonable doubt. Id.However, the Biagase line of cases is addressed to instances of
unlawful command influence identified after trial. This issue
arose before trial. Moreover, the Biagase line did not
contemplate nor address the circumstance where, as here, the
defense expressed satisfaction with the remedial measures
adopted by the military judge, in which context; the military
judge did not require more from the government.
As a result, in this case there are arguments on both sides
of the ledger. On the one hand, this is clearly a case where
the chilling hand of unlawful command influence initially
limited Appellant’s opportunity to solicit favorable testimony.
Because the Government bears the burden of proving beyond a
reasonable doubt that the unlawful command influence was not
prejudicial, it is placed in the position in this case of having
to demonstrate a negative, that Master Sergeant (MSgt) Bialcak’s
United States v. Douglas, No. 09-0466/AF
orders and actions did not continue to keep people from
testifying after the remedy was put in place. However, that is
hard to do; to resort to one of the metaphors that seem to cling
to unlawful command influence issues, one cannot un-ring a bell.
Perhaps, one of those putative witnesses would have vouched for
Appellant’s credibility or qualities as a member of the
military.
On the other hand, neither the military judge nor the
defense counsel put the Government to the test. Defense counsel
affirmed that the remedy had been implemented and, when given
the opportunity to object or voice any concerns or raise
additional motions, responded, “Nothing at this time.”
Moreover, there is no evidence that Appellant was prejudiced in
a military judge alone trial where the military judge understood
what the putative witnesses might have said, where the military
judge instituted a reasonable remedy, and where defense counsel
expressed satisfaction with the result.
Weighing these two sides of the equation I would reach a
different result than the majority in this case, therefore, I
respectfully dissent. As importantly, I disagree with the
analytic structure and reasoning the majority adopts.
First, the majority embraces the dated unlawful command
influence metaphor that the military judge is the last sentinel
against unlawful command influence, but then relieves that
2
United States v. Douglas, No. 09-0466/AF
sentinel of her duties. “The military judge, having crafted a
reasonable remedy, is not required, in the face of apparent
satisfaction from the defense, to intuit possible objections for
the defense and then raise them sua sponte.” United States v.
Douglas, __ M.J. __ (15) (C.A.A.F. 2010). In my view, whatever
metaphor we adopt, and it might be time to simply refer to the
military judge as a military judge and not a sentinel, it is and
remains the military judge’s responsibility to address unlawful
command influence at trial from start to finish, regardless of
what the parties say.
Second, the majority concludes that the military judge’s
remedial actions were reasonable. Id. at __ (14). The majority
also notes that the defense was given the opportunity to express
concerns about the application of those remedies and did not.
Id. That acquiescence is not waiver, but it is a factor the
military judge reasonably considered in proceeding with
sentencing. Specifically, in the context of this case, in a
military judge alone trial, the military judge did not require
the Government to do something more to demonstrate a lack of
unlawful command influence prejudice. Although in retrospect,
we now know it would have been better if the military judge had
expressly determined that all the remedial measures had been
implemented, I do not think the Biagese framework requires, or
should require, the Government to nonetheless prove a negative
3
United States v. Douglas, No. 09-0466/AF
in the context where the defense expressed satisfaction, the
military judge did not require more, and the military judge,
sitting alone, had command of the facts that might be relevant
to a good soldier case.
Third, in any event, the majority cites United States v.
Gleason, 43 M.J. 69, 74-75 (C.A.A.F. 1995), for the proposition
that the government has three means by which it can demonstrate
a lack of prejudice in a character witness case. Douglas, __
M.J. at __ (16-17). Aside from the fact that Gleason does not
provide or compel a checklist approach to prejudice, I would
leave the appropriate means of demonstrating a lack of prejudice
to the context of the individual case presented and the
discretion of the military judge presiding. This is especially
apt where the unlawful command influence is identified before
trial and addressed, as opposed to the circumstances in Gleason
and United States v. Thomas, 22 M.J. 388 (C.M.A. 1986), where it
was identified after trial.
Military judges, counsel, and indeed all participants in
the military justice system have a duty to remain vigilant to
the risk of unlawful command influence on military justice. In
this sense, the metaphor of the “mortal enemy” is still apt. If
allowed in practice, unlawful command influence will have a
corroding effect that could prove deadly to the confidence
members of the Armed Forces and the public have in the military
4
United States v. Douglas, No. 09-0466/AF
justice system. However, it is also fair to acknowledge that
the system has matured and evolved since Thomas. Thus, the
metaphor remains less apt to the extent it conveys the sense
that there is an enemy afoot -- a mortal enemy -- which one
might expect to contest the system at every turn, like Cold War
enemies or Carthage and Rome. In this sense, the metaphor may
suggest too much, in the way of a breathless presence, or
omnipresence. In that regard, one might better look to child
pornography or processing delay in the military justice system
as “mortal enemies.” However one describes unlawful command
influence, in this case the problem was identified, reasonable
remedial steps were taken, and both the military judge and
defense counsel were satisfied with those steps before the
military judge alone trial proceeded further. As a result, I
would find that there was no prejudice in this case and affirm
the United States Air Force Court of Criminal Appeals decision.
5
United States v. Douglas, No. 09-0466/AF
STUCKY, Judge (dissenting):
I respectfully dissent from the judgment of the Court to
set aside Appellant’s conviction.
The military judge fashioned a remedy for the unlawful
command influence and gave Appellant an opportunity to object to
it. Appellant did not object and the military judge continued
the court-martial until the remedy could be implemented. With
the consent of the parties, the military judge reconvened the
court-martial more than seventy days later. The military judge
inquired as to the implementation of the remedy. Defense
counsel affirmed that the remedy had been implemented and, when
given the opportunity to object or voice any concerns or raise
additional motions, responded, “Nothing at this time.”
The majority notes that “this Court has not applied the
doctrine of waiver where unlawful command influence is at
issue.” United States v. Douglas, __ M.J. __ (16 n.7) (C.A.A.F.
2010). This case is not about waiver of the unlawful command
influence issue -- Appellant’s attorneys raised, argued, and
prevailed on that issue at trial. Instead, this case concerns
whether an appellant has a duty to notify the military judge if
and when an instituted remedy proves unsatisfactory. I believe
he does.
The majority rests its holding on the fact that it does not
know whether the remedy was successfully implemented because the
United States v. Douglas, No. 09-0466/AF
defense did not call any character witnesses to testify on
Appellant’s behalf at this judge-alone trial. But there is good
reason for our ignorance; the defense failed to complain at
trial that the remedy was ineffective or provide facts upon
which such a conclusion could be drawn, even though any such
facts were solely within its knowledge.
Despite the absence of these necessary facts, the majority
suggests the prosecution had a duty to show that the
presentation of a good character defense was infeasible. Id. at
__ (17-18). There are many reasons why Appellant’s counsel may
have finally decided not to present such a defense, even if it
were feasible to do so. Placing the burden on the prosecution
to prove the defense was infeasible makes no sense, unless the
majority believes that Appellant’s counsel were ineffective. On
the record before us, there is no evidence or reason to believe
that the same aggressive defense attorneys who had prevailed on
the unlawful command influence issue suddenly lost their courage
and were afraid to notify the military judge that the remedy had
not been fully implemented or had not worked. On the facts of
this case, I am convinced beyond a reasonable doubt that the
remedy fashioned by the military judge purged the taint of the
unlawful command influence.
2