Unraveling unlawful command influence.

• Author: Bedi, Monu
• Position: I. Development of the Unlawful Command Influence C. Expansion by Courts to Apparent Unlawful Command Influence through Conclusion, with footnotes, p. 1425-1459

3. Expansion by Courts to Apparent Unlawful Command Influence

   Historically, the issue of public perception was a problem for the military justice system. As previously discussed, prior to the UCMJ, commanders had unfettered discretion with military justice matters, which not only contributed to unjust results but also undermined the public opinion of the system. (163) Indeed, mass protests after World War II helped push Congress into making reforms and passing the UCMJ. (164) Recognizing the need for the perception of justice--not simply actual justice--military courts expanded the unlawful command influence doctrine to include apparent unlawful command influence. (165) It turns out that Congress, when it passed the UCMJ, had contemplated the need to address both ends. (166) A member of the congressional hearing stated: "It seems to me that first, you must insure a fair trial, and second, you must maintain a belief in a fair trial...." (167) The first wave of cases interpreting Article 37 quickly followed suit and recognized the value of preserving a positive public perception of the military justice system. (168) Two early CAAF decisions express it in the following way: "[T]he court's actions and deliberations must not only be untainted, but must also avoid the very appearance of impurity.... When such an unhappy appearance is present, proper judicial administration often requires reversive action." (169) Further: "A judicial system operates effectively only with public confidence--and, naturally, this trust exists only if there also exists a belief that triers of fact act fairly and without undue influence." (170)

   Courts, thus, have adopted a two-part analysis to assess a claim of unlawful command influence. (171) First, they ask whether the proceeding was actually tainted. (172) If the answer is "no," the next inquiry focuses on whether it may appear to have been. Flere, the emphasis is on the totality of the circumstances. (173) Courts seek to answer the question "whether a reasonable member of the public, if aware of all the facts, would have a loss of confidence in the military justice system and believe it to be unfair." (174) The term "public" includes both the civilian population and military community. (176) The same burden of proof with assessing actual prejudice applies in the case of apparent unlawful command influence. The government must show beyond a reasonable doubt that the public would not find the proceedings unfair. (176)

   Remedies for this type of unlawful command influence violation will naturally be different from a case of actual unlawful command influence. "Since it is the interests of the military justice system rather than those of the appellant which are endangered by the appearance of unlawful command influence, the remedy must relate to the interests of the system rather than those of the appellant." (177) Put differently, the remedy should be logically connected to the public harm and try to restore faith in the system, not target the defendant's particular situation. (178) This can make the specific remedy tricky, particularly at the appellate stage. Courts have issued a wide range of corrective actions, ranging from merely acknowledging the concern in the opinion to vacating the verdict and sentence. (179)

   Public statements by commanders outside the courtroom necessarily raise the potential for an appearance of unlawful command influence claim. (180) The previously mentioned controversy surrounding Obama's comments provides a recent example of this problem. (181) There, the Hawaii military trial court decided against ruling on whether the President's statements actually created an instance of unlawful command influence that tainted the proceedings. In fact, the judge was presented with an affidavit from the commander stating that he was fully aware of the President's remarks but nevertheless exercised, and would continue to exercise, his independent judgment during the trial. (182) Without deciding the issue, the court found that, at the very least, the facts raised an appearance of unlawful command influence. It found that a "disinterested and informed member of the public observing this case would believe that the Commander-in-Chiefs statements about the military are significant to [a commander who brings charges against a defendant]." (183) Specifically, a member of the public would draw a connection between the President's comments about a dishonorable discharge and any resulting approval of such a sentence by the commander. (184) Because Obama's statement targeted the sentencing and not the merits phase, the court's remedy focused on this part of the trial. It ruled, as a prophylactic measure, that any punitive discharge adjudged by the jury in that case would be vacated after trial. (185)

   2. THE (SEPARATE) CASE OF PROSECUTORIAL MISCONDUCT

1. Civilian Prosecutors vs. Military Prosecutors

   Misconduct by civilian prosecutors may be more familiar to readers. The Supreme Court describes the term as "overstep[ping] the bounds of ... fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense." (186) The aim here--not unlike in the military system--is to protect the due process rights of defendants. (187) Though not exhaustive, prosecutorial misconduct can include a host of conduct, such as withholding favorable evidence from the defense, (188) presenting false or improper evidence, (189) making improper or inflammatory remarks to the jury, (190) or preventing or otherwise interfering with witness testimony. (191) All of these actions would also constitute unlawful command influence if associated with commander misconduct. (192)

   Now admittedly, each type of misconduct may sweep more broadly than its counterpart in certain areas. Outside the courtroom, for example, there are probably more ways a commander can commit unlawful command influence than a civilian prosecutor can commit prosecutorial misconduct. (193) This shouldn't be surprising given the broader responsibility of a commander as a leader of troops and someone who can communicate legally binding orders to her subordinates. (194) On the other hand, because a commander is not trying the case, there are more ways a civilian prosecutor can commit misconduct through trial errors and other related matters (e.g., improper statements to juries or presenting false evidence). (195) Regardless of the potential reach of each doctrine, however, the fact remains that both doctrines are concerned with assuring a fair and impartial trial. (196)

   Military prosecutors serve a more limited role than their civilian counterparts. They do not have the same discretionary authority in bringing charges or approving plea agreements. (197) They are more aptly described as advocates for commanders who make the ultimate decisions on these issues. (198) Still, military prosecutors can advise commanders on what charges (if any) to bring and counsel them on plea agreements. (199) Perhaps most importantly, these attorneys are the ones actually prosecuting the case--they conduct voir dire, present evidence and testimony, and make opening and closing arguments. (200) With this power also comes the potential for misconduct. (201) Like civilian prosecutors, military prosecutors too can coerce witnesses, withhold evidence, or make improper statements at trial. (202) CAAF describes prosecutorial misconduct as "action or inaction by a [military] prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual [for Courts-Martial] rule, or an applicable professional ethics canon." (203)

   Military prosecutorial misconduct would seemingly fall under the purview of Article 37. The statute does not distinguish between commanders and prosecutors, nor does it restrict the type of prohibited conduct. The second sentence of the Article explicitly states that "[n]o 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." (204) Military prosecutors--because of their status as soldiers--are persons subject to the UCMJ, and the pertinent language would include misconduct relating to their responsibilities, since that conduct can also interfere with the administration of justice. (205) Military courts have also explicitly referred to military prosecutorial misconduct as a subset of unlawful command influence or otherwise associated the two terms. (206)

   All of this would suggest that military prosecutorial misconduct should be treated in the same way as unlawful command influence using the same standard. But that's not what military courts have done. Instead, they have adopted the more lenient civilian prosecutorial misconduct standard when assessing actions by military prosecutors. (207)

2. The More Deferential Civilian Standard

   During the early part of American history, civilian prosecutors were actually appointed by the court or the governor and, in turn, had little independence or discretion. (208) Not unlike military prosecutors who consult with commanders, these early public prosecutors were also required to consult with the court or the governor before making decisions. (209) During the mid-Nineteenth Century, this model changed, and state prosecutors became elected officials with wide discretion and accountability to the public only. (210) The system of federal prosecutors evolved differently. The Judiciary Act of 1789 created the office of the Attorney General as well as individual district attorneys to prosecute in their respective territories. (211) It was not until the mid-Nineteenth Century that these attorneys came under the supervision of the Attorney General. (212) The checks and balances system was intended to ensure proper prosecutorial functions. (213) Courts and legislators became...