United States v. Douglas. This is a UCI case. The military judge found UCI and then crafted a remedy. The issue on appeal related to the appropriateness of the remedy and whether or not the appellant had accepted the remedy and actively participated in the remedy. The AFCCA decision was reversed.
If the record disclosed that the reasonable remedy had been implemented in full, Appellant’s participation in and apparent acquiescence at trial to the remedy crafted and Appellant’s
disavowal of any claim of ineffective assistance of counsel would end the inquiry. However, because the record does not disclose whether the remedy crafted by the military judge was
actually implemented in full, under the facts of this case we devolve to the ordinary test whether unlawful command influence deprived Appellant of access to character witnesses. United States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining the government’s burden to establish beyond a reasonable doubt that defense access to witnesses was not impeded by unlawful command influence). We are not convinced beyond a reasonable
doubt that Appellant was not thus prejudiced. United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a reasonable doubt the correct quantum of proof applicable to issues of unlawful command influence). Accordingly, we overturn the United States Air Force Court of Criminal Appeals.
The facts of this case are not uncommon. Commands routinely give no contact orders to an accused (but interestingly not their own witnesses). It is not unusual for a command to cast an accused adrift, make them an outcast, and directly or indirectly imply to others that supporting and helping the outcast will be viewed with disfavor.