Articles Posted in UCI

Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in the reports submitted to prosecutors and the command. For example, the reports tend to focus on the bad things about you and ignore what might be helpful to you or your case. We call these instances of biased investigations as affected by confirmation bias. Many times, this doesn’t make a lot of difference. But, in sexual assault cases, a biased and incomplete investigation can lead to problems for the defense—and also for the prosecution. The recent Court of Appeals for the Armed Forces (CAAF) decision in United States v. Horne is an example of how things can go wrong and, in your case, might create serious problems if something similar happened during your investigation.

According to the appellate decisions, the special victim counsel (SVC) and the trial counsel (TC) tried to discourage investigators from interviewing a witness. It worked for a while during which time it appears the witness had a less clear memory of events. The TC thought the witness might have “exculpatory” information which they are obligated to disclose to the defense and which might be helpful to the accused.

The Air Force Court of Criminal Appeals (AFCCA) decision has an extensive review of the facts and circumstances of what happened. Ultimately, the Air Force court and CAAF decided while it was wrong, there was no prejudice against the accused. This case represents how a prepared and aggressive military defense lawyer can help protect you and the record. Sadly, this could happen to you. It is not clear if the SVCs and TCs will learn anything from this case to study their practices and comply with the law and ethics rules. We shall see. The CAAF has these words,

What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations?

Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations.

Prohibited Testimony or Other Evidence. During an inquiry into the validity of a finding or sentence, a member of a court-martial may not testify about any statement made or incident that occurred during the deliberations of that court-martial; the effect of anything on that member’s or another member’s vote; or any member’s mental processes concerning the finding or sentence. The military judge may not receive a member’s affidavit or evidence of a member’s statement on these matters.

Going through some old files I came across the

Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).

Should the TJAGs also send a “letter to self?”


Seems to me that the best practice is to raise any possible UCI claims prior to trial on the merits–depending on when you learn of the alleged UCI.

The general rule is the defense does not waive UCI by failing to raise it at trial. Id. at 193. This rule, however, is not absolute. The United States Court of Appeals for the Armed Forces (CAAF) has distinguished UCI in the accusative phase (e.g., involving the preferral, forwarding, and referral of charges), from UCI in the adjudicative phase (e.g., interference with witnesses, judges, members, and counsel). United States v. Weasler, 43 M.J. 15, 17-18 (C.A.A.F. 1995). In making this distinction, the CAAF concluded claims of UCI during the accusative phase can be waived. Id. at 19 (“Where there is coercion in the preferral process, ‘the charges are treated as unsigned and unsworn,’ but the ‘failure to object’ constitutes waiver of the issue.”). The court has also found waiver of defects in the forwarding process if not challenged at trial. Id. (citing United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994)).

Having concluded referral is part of the accusatorial stage, we examine appellant’s knowledge of the facts at the time and whether appellant was in some way precluded from raising UCI at trial. “If command influence is known, or reasonably could be known in either the accusatorial stage or the selection process, failure to raise the issue constitutes waiver.” See United States v. Upshaw, 49 M.J. 111, 114 (C.A.A.F. 1998) (Crawford, J., concurring) (citing Weasler, 43 M.J. at 17).

This Court unequivocally endorses the Supreme Court’s observation that “[f]ederal courts have an independent interest in ensuring that … legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).

United States v. Boyce, 76 M.J. 242, 253 (C.A.A.F. 2017).

The NMCCA has decided United States v. Brown — one of the questions:

When the Congress, the media, and commanders called for a crackdown on military sexual assaults, the fear among the defense bar was the specter of unlawful command influence.  Most of the cases have focussed on pretrial and post-trial.  But the biggest fear was realized in United States v. Schloff, a case I did at trial and on appeal.

“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

Although we have an independent duty to determine the question of UCI de novo, we concur with the DuBay military judge that actual and apparent UCI occurred and the government failed to establish “beyond a reasonable doubt that UCI . …. was not improperly brought to bear on any member during the findings phase of [appellant’s] court-martial.” As correctly noted by the DuBay military judge “[COL JW] injected policy and career concerns into the deliberations [and h]e did so despite the military judge’s clear guidance that the case be decided solely on the evidence presented in court and the instructions on the law given by the military judge.” The UCI was a “palpable cloud throughout the deliberations” left to permeate in each panel member’s decision-making process. “

The CAAF took the following action last Friday.

No. 16-0309/AR. U.S. v. Michael B. O’Connor. CCA 20130853. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel were ineffective in failing to investigate alleged unlawful command influence in the preferral process. SeeUnited States v. Ginn, 47 M.J. 236(C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:


When a judge decides a motion at court-martial they will present the facts they have found, discuss the law, and make their conclusion.  On appeal, when the military judge makes proper findings of fact, the court will accept those facts for the purpose of review unless there is an abuse of discretion and the facts found are “clearly erroneous.”

C.A.A.F. seems to have this definition, among several, of what clearly erroneous means.

At least one court has defined the clearly-erroneous standard by stating that it must be "more than just maybe or probably wrong; it must … strike us as wrong with the force of a five-week-old, unrefrigerated dead fish." Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988).

Family of sailor slain in Newport News seeks court-martial, The Associated Press, October 1, 2009


The family of a sailor slain in Newport News is pressing the Navy to court-martial and dishonorably discharge the fellow sailor convicted of killing her.

Sen. John Kerry, D-Mass., has already weighed in, telling the Navy last month that the sailor, Darren W. Mackie, 22, should be dishonorably discharged "at the very least," which the Navy hasn’t pursued.

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