Unlawful command influence is said to be the “mortal enemy of military justice,” but defining what that actually means is somewhat complicated. When potential clients ask us if they potentially have an issue with unlawful command influence, we always have to apply their specific facts to the law. The follow up question is often whether or not the particular prosecutor in their case is being vindictive–in particular when court martial charges come on the heels of an Article 15 or NJP turndown.
Here we will breakdown the law on unlawful command influence and prosecutorial vindictiveness. To get a conclusion on a particular case, the facts would need to be applied to the law which should drive the conclusion.
There are two types of unlawful command influence, actual unlawful command influence, and apparent unlawful command influence. (See United States v. Boyce, 76 M.J. 242, 247 (C.A.A.F. 2017.)) Actual unlawful command influence “is an improper manipulation of the criminal justice process which negatively affects the fair handling and/or disposition of a case.”
Actual unlawful command influence requires the Accused demonstrating “some evidence” which, if true, constitute unlawful command influence, that the proceedings are unfair, and that the unlawful command influence is the cause of the unfairness (United States v. Salyer).
The Burden On Factual Matters Is By A Preponderance Of The Evidence
For unlawful influence, the Defense has the initial burden of showing facts which, if true, constitute unlawful influence. The Government then has the burden, beyond a reasonable doubt, to show that there was no unlawful influence or that the unlawful influence would not affect the proceedings (United States v. Biagase). For prosecutorial vindictiveness, the Defense bears the initial burden of demonstrating that the decision to prosecute was based on impermissible considerations such as race, religion or the desire to prevent the exercise of a constitutional right. (See United States v. Covington, 1987 CMR LEXIS 533 (A.F.C.M.R. 1987)). The Government must then rebut the showing of vindictiveness. (See United States v. Bass, 11 M.J. 545 (A.C.M.R. 1981)). As stated above, unlawful command influence is “the mortal enemy of military justice.” United States v. Kitts, 23 M.J. 105, 107 (C.M.A. 1986) (quoting United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986)). Courts are committed to preventing interference from non-command sources. Historically, courts have focused on abuses committed by those acting with the mantle of command authority. However, courts apply the same test for unlawful influence as that of unlawful command influence. Id.Unlawful Command Influence
