Fear and loathing at NMCCA

United States v. Harris, __ M.J. ___, No. NMCCA 200401897 (N-M. Ct. Crim. App. 24 Jan. 2007), is a seriously weird opinion. It all takes place in Hawaii -- in a series of events reminiscent of Hunter S. Thompson's The Curse of Lono. Lono begins in deranged fashion with an airline passenger whose arm is stained blue. Harris begins in deranged fashion with Petty Officer Harris "digging in his neighbor's yard in the pouring rain and dressed only in a pair of muddy shorts[,] relat[ing] a bizarre story about some 'guys trying to kill him,' and . . . 'digging for diamonds' in his neighbor's yard." Not surprisingly, shortly thereafter Harris tested positive for a controlled substance, to wit: crystal methamphetamine.

Harris must have been on crystal meth again when he turned down NJP. He was then taken to an admin discharge board, in anticipation of which a civilian friend of his named Foster provided an affidavit in which Foster said he put 2 grams of crystal meth into Harris's drink without Harris's knowledge. The admin discharge board's recorder contacted Foster, who said the affidavit was true. After the admin board was delayed, the recorder supposedly couldn't find Foster and asked the Kauai Police Department to locate him--not to intimidate him, mind you, only to track him down. (Yeah, right.) Lieutenant Asher of the KPD met with Foster and told him that his affidavit essentially confessed to violating Hawaii law. Foster than admitted the affidavit was a lie and said Harris gave him $2,500 to make the statement. Foster then made a second hand-written statement retracting his first statement.

The admin board then met, but there were problems with recording it. Harris, apparently yet again under the influence of mind altering drugs, asked to be court-martialed instead. Bad career move.

At the resulting court-martial, the defense submitted a motion to suppress Foster's second statement due to unlawful command influence. The military judge denied the motion. Foster testified, both of his statements came in, and the court-martial convicted Harris and adjudged a sentence that included a BCD and three months of confinement -- neither of which could have been imposed at NJP or by an admin discharge board.

NMCCCA spanked the military judge for applying the wrong legal standard in ruling on a UCI motion concerning the recorder's actions toward Foster and spanked the appellate defense counsel for allegedly misrepresenting the facts. Okay, so far everything is normal. But then things get weird again. Here is NMCCA's holding on this issue: "[W]e find that the appellant successfully raised unlawful command influence and that the Government thereafter met its burden to show beyond a reasonable doubt that the facts alleged by the appellate did not constitute unlawful witness intimidation or unlawful command influence."

Here's what I don't get. The decision makes clear that Foster was a civilian. At one point, the opinion states that the "recorder expressly told Lieutenant Asher [of the Kauai Police Department] that the Navy was not threatening prosecution of Mr. Foster and, in fact, had no jurisdiction over Mr. Foster." If Foster was a civilian, then how could he have been subjected to unlawful command influence? Is anyone aware of any other opinion that has found a prima facia case of UCI due to a military official's conduct toward a pure civilian?

The Curse of Lono ends with Hunter S. Thompson sitting in a hut in the City of Refuge typing out, "When the going gets weird, the weird turn pro." Both Harris and Foster could have used adjacent huts in the City of Refuge. And for both NMCCA and the law of command influence, the going seems to have gotten weird.

--Dwight Sullivan