Can the actions of military prosecutors raise the specter of Unlawful Command Influence?
That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals. (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August 18, 2015)[ https://www.court-martial-ucmj.com/files/2016/03/USvGarcia.pdf].
[W]e first conclude government counsel’s multiple improper references to Army-wide efforts to respond to and prevent sexual assault created the appearance of unlawful command influence. As set forth below in our prejudice analysis, we conclude that the proceedings were unfair and that the government’s persistent and improper references to Army policy were a source of an unfair trial.
There are some additional lessons for prosecutors.
During her rebuttal argument on findings, trial counsel made two improper references to appellant’s exercise of his constitutional rights. First, trial counsel argued with respect to appellant’s decision to call . . a witness[.]
The second instance of improper argument occurred during government counsel’s findings argument when she invited the panel to convict appellant because of his exercise of his Sixth Amendment right to confront witnesses against him.
In 2013, SSG G. Garcia stood trial for three specifications under UCMJ art. 120, of rape, a specification of non-consensual oral sex, and a specification of forcible sodomy, of a Specialist (a Soldier two ranks lower than Garcia). In addition he was accused of maltreating four other Soldiers. After a contested trial, before a panel of officers and enlisted members, he was found guilty of the charges involving the Specialist and of two of the maltreatment charges. He was sentenced to a dishonorable discharge, reduction to paygrade E-1, and five years confinement.
The Specialist alleged that the offenses happened between 1 April 2009 and 30 May 2009 at a guesthouse in Germany. Both she and Garcia were assigned to a unit at Wiesbaden, Germany. She did not report these allegations until she had viewed the movie The Invisible War in 2012.
The first trial happened during the height of the media and Congressional attention to military sexual assaults. And President Obama had recently made remarks about the handling of military sexual assault cases. The military judge denied a defense motion to dismiss for unlawful command influence, but allowed substantial voir dire of the panel about potential bias regarding the handling of sexual assault cases.
The Specialist testified at the first trial that she could not report the events that night because she had run out of minutes on her cellphone and she did not have a way to contact anyone. After the alleged assaults she spent the next day with Garcia touring the local town. [link] Over the next few weeks she continued to interact with Garcia, including sending him several personal photographs. About two weeks she accepted an invitation from Garcia to visit him at the town where he was living and spent the day touring the town with him. After this, their “relationship” became distanced. It appears she was seeing another Soldier who she married.
At the time of the alleged assaults the Specialist was serving as a paralegal in the brigade judge advocate office. While in that office she became aware of the investigations into Garcia’s alleged maltreatment of other Soldiers, but she did not report the offenses against herself. She later testified that she did not think she would be taken seriously if she made her allegations at the time of those ongoing investigations.
Civilian military law attorney Philip D. Cave represented SSG Garcia in the appeal of this case before the Army Court of Criminal Appeals. The court set aside the convictions regarding the Specialist, but affirmed the convictions on the two maltreatment charges. The court ordered that the dismissed charges could be retried or a sentence rehearing could be held on the maltreatment charges only.
On 14 March 2016, retrial began for the charges of sexual assault against the Specialist. The commander at Fort Sill determined that it was in the best interest of the Army and the Specialist to have a retrial. Civilian military defense lawyer Cave represented Garcia at this retrial.
Garcia by now had served 860 days of the five year sentence. He had had been confined for a short period at the Mannheim, Germany, confinement facility. He was transferred first to the Navy Consolidated Brig Miramar and then to the Navy Consolidated Brig Charleston. He was released from confinement as a result of the Army court decision, in September 2015.
The retrial began before a panel of officer and enlisted members. The case began with a strange twist. After group voir dire civilian military defense attorney Cave made a motion for a mistrial, which was denied. Cave then made a motion to excuse the whole panel which was granted. After these events, Garcia changed his forum to military judge alone.
At the retrial the Specialist testified substantially the same as her first testimony. There was one very significant change. The Soldier now claimed that she made two phone calls the night of the assault to a friend in Washington state. She agreed that she told Army CID, in August 2012, that she’d only made one phone call the night of the assault which ended abruptly when she ran out of cell phone minutes; she agreed that she testified in an Article 32 hearing in January 2013, that she only made the one phone call; and she agreed that she had testified at the first trial to making only one call that night before the alleged assaults. On retrial, she testified that she called and reported the assault that night to her friend by cellphone. She testified that she did not remember the second call until a few weeks before the retrial began. The person whom she allegedly called did not testify at the retrial. This same friend had not testified at the first trial.
Garcia testified at the retrial. He denied any sexual activity or assault at the guest house as alleged by the Specialist. However, he admitted that he and the Specialist had consensual sex at his home during their second time together several weeks later.
Garcia was found not guilty of the sexual assaults against the Specialist.
After a sentencing hearing on the remaining charges, Garcia was sentenced to a bad conduct discharge, reduction to paygrade E-3, and two months (60 days) confinement. He was given 860 days confinement credit. It should be noted that the maximum possible confinement he could have received on the remaining charges was two years.
The appeal process will begin anew.