Tuesday, February 12, 2008

New CAAF decision on command influence

A new decision is out from CAAF today: United States v. Reed.

The sole granted issue was whether Master Sergeant Reed's conviction, which stemmed from his claims for BAH at the married rate while he was actually divorced, was tainted by unlawful command influence. According to a unanimous court, the short answer is "no."

Some time prior to the appellant's trial, the convening authority sent an email to his subordinates addressing disciplinary issues in the command. The email included a slide presentation that included the following admonition: “Senior NCO and Officer misconduct -- I am absolutely uncompromising about discipline in the leader ranks.” A subsequent slide listed "BAH Fraud" as an example of such misconduct. The trial defense counsel also presented evidence that a “Newcomer’s Briefing” included a statement to the effect that “BAH fraud is an automatic courtmartial [sic] referral here.”

The trial counsel countered with a follow-up email sent by the convening authority explaining the "absolutely uncompromising" language of the slide presentation: "What that means simply is that I will abide by and enforce Army regulations and the Uniform Code of Military Justice as I swore to in my oath and as I am chartered to do as a commander. I will not look the other way, nor apply special dispensation on infractions by leaders ... that does NOT mean that each case is handled in the same manner or will have identical outcomes."

CAAF noted the "extensive" litigation at trial on this issue. The Article 32 IO and the officers in the appellant's chain all testified that they exercised independent judgment in their handling of the case without regard to any perceived command policy on BAH fraud. The military judge also permitted extensive voir dire of the members to determine whether they were influenced by the "command climate." Writing for the court, Chief Judge Effron concluded that even assuming that the evidence raised at trial raised the appearance of unlawful command influence, the government met its burden of proving beyond a reasonable doubt the absence of actual UCI.


John O'Connor said...

The intersection of military justice, on one hand, and the need for good order and discipline, on the other hand, can create tricky and, in some ways, incomprehensible standards for what a military leader can do without getting into legal hot water.

Separate and apart from the military justice system itself, a commander has a leadership duty to instill good order and discipline in his command. Part of that duty can be discharged by making sure that a command knows that the commander will not tolerate misbehavior and will deal with it in a serious way. Sort of the "if you take drugs, I'm coming down on you hard" speech that many, many commanders have given. But I'm not sure that UCI is sufficiently clear so that a commander can really know how hard he can stress the need for good order and discipline without crossing the line and causing UCI issues. This leads to inconsistent results and a lack of clear guidelines for commanders in discharging their leadership and miljus obligations.

A similar dynamic exists in pretrial punishment law. When I was a section leader, and I had one of my Marines pop three times for meth, I thought it was my absolute duty to tell new Marines straight from SOI not to hang around that kid because he was trouble. Is this ostracizing someone who hadn't been convicted? Well, yeah, but it was also at least as much a tool of preserving good order and discipline as the military justice system.

Similarly, where is the line on statements that certain offenses are automatic courts-martial? I had commanders who had "going rates" for drug pops. It was either SpCM or SpCM with a standing offer to pull it back to an SCM with a board waiver (assuming no prior misconduct by the accused). Are essentially inflexible standards for treating certain types of offenses wrong? Maybe in some cases, but in others it reminds me of the ridiculous exercise of asking death penalty jurors if they could convict and award no punishment, and then trying to strike as inflexible those who couldn't conceive of awarding no punishment to a convicted murderer. Generally speaking, I think it's good for a command to know how certain types of charges will be dealt with, as it weakens the prospect of favoritism.

I'm not sure I really have any answers to provide, other than to say UCI is bad but leadership is good, and maybe the commanders' intent (and the degree that statements are directed at a particular case) ought to be the predominant consideration.

Anonymous said...

Not so sure that presuming prejudice is best route. While intent and such is valuable to consider, seems that since it is "unlawful command influence" we should look to see whether there was in fact any influence - at least by a preponderanc. I've seen a number of commanders/supervisors who were completely out of bounds but w/out any influence whatsoever...in fact, if anything their pressure resulting in the exact opposite of what they wanted.

Anonymous said...

CAAF failed to see the trees for the forest here. The "crackdown" on BAH fraud permeated every level of that command. Hence the remark "BAH fraud is an automatic court-martial" at the newcomers brief. The CA's curative email could not even begin to put the toothpaste back in the tube. Furthermore, panel members are smart, experienced people, and they know the right answers to give during voir dire, e.g., “I will keep on open mind,” “I will consider all the evidence,” etc. So I am similarly unimpressed by the faith CAAF places in the voir dire to reach its conclusion.

Now, a better questioned is "so what?" Maybe we should re-examine the notion that convening authorities or panel members cannot have an inflexible attitudes. Does anyone really doubt that drug distribution, child molestation, or murder will yield a court-martial and a stern punishment?

One also wonders why the original appellate defense counsel didn’t raise, or why CAAF didn’t specify, the issue of implied bias instead of UCI. As I recall, the DC tried to challenge the remaining two panel members who got the email, but the MJ denied the challenges.