NMCCA first determines that the defense made a sufficient case to shift the burden to the government to demonstrate lack of unlawful command influence. In the key portion of its opinion, NMCCA then reasoned:
Despite having the burden of proof, the Government presented no evidence to ameliorate the "potential improper influence flowing downwards" specifically the appearance that the MARCENT SJA's legal advice may have been impermissibly influenced by Col Ewers' presence or participation in the CDA legal meetings. Such an appearance was further supported by Col Ewers' stellar reputation, seniority, long-term relationship with the CDA, personal knowledge of and well-known opinions regarding this case forged by his role as an investigator on the reporting and follow-on actions regarding the Haditha incidents. Record of 7 May 2008 at 14, 15. In fact, Col Ewers testified that he had anticipated, based on his history with LtGen Mattis and the fact that he was the senior SJA, that he might be asked his opinion on MARCENT matters. Record of 2 Jun 2008 at 90.The opinion proceeds as if its ultimate destination is a total affirmance of the military judge's ruling, but then sharply veers off course near the end. Without providing any supporting explanation or analysis, NMCCA announces:
Notably, five of the seven legal conclusions reached by the military judge address the Government's failure to prove beyond a reasonable doubt that the MARCENT SJA, or his legal advice, was not impermissibly influenced by Col Ewers' presence at, or participation in, the legal meetings with the CDA. Although we have not and need not decide whether Col Ewers' presence actually chilled or otherwise impermissibly influenced the legal advice of the MARCENT SJA, (nor whether any potential chilling was intentional or unintentional), we are convinced the Government failed to meet its burden of demonstrating, beyond a reasonable doubt, that these proceedings were untainted by the appearance of UCI. We are similarly convinced that an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor significant doubt about the fairness of this proceeding.
Thus, we are left to conclude that the Government has failed to prove beyond a reasonable doubt there was no apparent UCI.
We further conclude that the military judge's disqualification of Joint Forces Command organization, except to the extent that it involves Gen Mattis in his individual capacity, is not supported by factual findings in the record, and therefore is an abuse of discretion.The very next sentence states, "For the foregoing reasons, the Government's interlocutory appeal is denied." Huh? If NMCCA reversed part of the military judge's remedy, as it did in the preceding sentence, then isn't the government's appeal necessarily granted in part? Shouldn't the decretal paragraph have read that the appeal was denied in part and granted in part?
Having devoted nine months for the marginal benefit of undisqualifying Joint Forces Command members other than General Mattis, will the government finally get on with the merits of the Chessani case or is there a petition for en banc rehearing or certification in its future? (If there were a certification and the Supreme Court's Denedo opinion -- which will likely be released near the end of June -- were to include any dicta that cast doubt over CAAF's decision in Lopez de Victoria, a certified Chessani case could become a vehicle for revisiting that decision.)