Court of Appeals Reverses Lower Court and Dismisses Charges After Unlawful Command Influence

Unlawful command influence has been called the “mortal enemy” of military justice. Article 37(a)(3) of the UCMJ prohibits any person subject to the UCMJ from attempting to coerce or, by any unauthorized means, attempting to influence the action of a court-martial. Some common examples are when a command prevents other servicemembers from testifying on behalf of an accused servicemember at trial or when an individual tries to influence the decision of the members panel.

When an accused servicemember believes that someone has taken action to influence the outcome of their court-martial, they must file a motion with the court. If the accused is able to present some evidence of UCI, the burden then shifts to the Government. The Government must now either: 1) disprove the facts upon which the UCI allegation is based; 2) persuade the judge that the allegation is not actually UCI; or 3) prove beyond a reasonable doubt that UCI will not affect the proceedings.

In order to prove that UCI will not affect the proceedings, the Government must show the court the curative measures that have been taken to eliminate the source of UCI and keep it from affecting the court-martial. In a 1998 case, United States v. Rivera, a battery commander had discouraged Soldiers from testifying on behalf of an accused Soldier in the unit. To cure this UCI, the battery commander convened another battery meeting and retracted his prior remarks. He apologized and assured the members of his command that no adverse consequences would result for anyone who testified on behalf of another Soldier. The meeting was recorded so that anyone absent would also hear it. The battalion commander and division artillery commander also attended the meeting. Ultimately, no Soldier who was identified as a possible witness declined to testify, so the Government met its burden to prove beyond a reasonable doubt that the original UCI would not affect the proceedings.

This issue arose again recently in the case of United States v. Gilmet. Chief Gilmet was facing court-martial. He was charged with, among other offenses, involuntary manslaughter and negligent homicide. He hired a civilian attorney, requested Capt Thomas as his individual military counsel, and was assigned Capt Riley as his second military counsel.

Before trial, Capt Thomas attended a meeting of all defense counsel on Camp Lejeune. At this meeting, the Colonel in charge of the slating and assignment process for all Marine Corps Judge Advocates spoke about a new billet being created to make prosecutorial decisions. Capt Thomas asked the Colonel about any systems being put in place to protect the holder of this new billet from outside influences. In his question, Capt Thomas referred to measures in place to protect defense counsel from similar pressures. The Colonel told the assembled defense counsel that defense attorneys were not actually protected from outside influence. He specifically told Capt Thomas that he knew who he was and what cases he was on and that Capt Thomas was not protected.

The Colonel went on to say that the Marine Corps Judge Advocate community was small and that senior officers sitting on promotion boards would know what the defense counsel did. He illustrated his point by referencing judge advocates he knew who had served as defense counsel and should have been promoted but were not.

As a result of this meeting, Capt Thomas and Capt Riley no longer felt that they could represent Chief Gilmet without putting their military careers in jeopardy. Chief Gilmet no longer felt that the attorneys could be loyal to him and zealously represent him. The defense filed a motion alleging UCI.

The judge first addressed the issue of the conflict of interest created with Capt Thomas and Capt Riley. They asked to withdraw from the case, and Chief Gimlet agreed to release them in order to ensure that he had counsel who did not have this conflict of interest.

The judge then addressed the UCI motion. He found that the defense had presented some evidence of UCI and shifted the burden to the Government to prove beyond a reasonable doubt that this influence would not affect the proceedings. The Government provided a statement from the senior Marine Corps Judge Advocate. The General stated that the Colonel had been permanently removed from his position and that defense counsel would suffer no consequences from their time in that billet. The Government also provided documents demonstrating that several senior officers had been in defense billets with no harm to their careers and other statements from officials describing the promotion and assignment process and stating that service in defense billets did not adversely affect the careers of Judge Advocates.

The military judge determined that the Government had not met its burden to prove beyond a reasonable doubt that UCI would not affect the proceedings, because Chief Gilmet’s right to counsel had already been violated when his military counsel had to withdraw from defending him. He dismissed the charges with prejudice, meaning that they could not be brought again in another court-martial.

The Government appealed to the Navy-Marine Corps Court of Criminal Appeals. This appellate court reversed the judge’s decision and reinstated the charges. The defense then appealed to the Court of Appeals for the Armed Forces (CAAF).

CAAF held that the Government had not proven that the UCI would not affect the proceedings. It based this holding on the fact that the Colonel whose comments had created this problem had never retracted them or apologized. While the General had provided a statement for the hearing, he had never convened the Camp Lejeune defense counsel and assured them that the Colonel’s comments were inappropriate and incorrect. Ultimately, the fact that the Government had created a conflict of interest that caused Chief Gimlet to lose the counsel of his choosing meant that the UCI had already influenced the proceedings.

CAAF reversed the Navy-Marine Corps appellate court and reinstated the judge’s decision dismissing the charges with prejudice.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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