United States v. Gore
2004 WL 1856841, 60 M.J. 178, 2004 CAAF LEXIS 803 (2004)
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Rule of Law:
A military judge has the discretion to dismiss charges with prejudice as a remedy for unlawful command influence when the influence is so egregious that it irreparably taints the proceedings and prevents the accused from receiving a fair trial.
Facts:
- In preparation for the sentencing phase of Constructionman Gore's court-martial, his defense counsel, Lieutenant Maye, sought character witnesses from Gore's unit.
- Lt. Maye met with Chief Petty Officer Metheny, who initially and enthusiastically agreed to testify favorably on Gore's behalf, stating Gore was a 'nice guy' who should be retained in the service.
- Chief Metheny also agreed to distribute character witness questionnaires to other senior enlisted personnel who he believed would provide positive information about Gore.
- After this conversation, Chief Metheny informed his commanding officer (CO), Commander Morton, of his intention to testify for Gore.
- The next day, Chief Metheny told Lt. Maye he could no longer help, stating, 'My skipper said no way. He said that I can’t help Constructionman Gore,' and 'my CO said we cannot help Constructionman Gore. End of story.'
- Chief Metheny later told Lt. Maye and another officer, Lt. Weber, that neither he nor anyone else in the command would testify for Gore due to the CO's order.
- Chief Metheny expressed fear for his career, grabbing his collar device, noting he made chief in 11 years instead of the usual 16, and stating that one gets ahead by 'not bucking the system' and that the CO authors his fitness reports.
- On the morning of the trial, Chief Metheny informed defense counsel he would 'toe the line' and testify in a manner 'consistent with the command's wishes,' as Gore was not worth risking his career over.
Procedural Posture:
- Charges of desertion and unauthorized absence were preferred against Appellant Gore and referred to a special court-martial.
- At an Article 39(a) session, Gore's defense counsel moved to dismiss the charges with prejudice due to unlawful command influence by the convening authority.
- The military judge (trial court) granted the motion and dismissed the charges with prejudice.
- The Government filed an interlocutory appeal to the U.S. Navy-Marine Corps Court of Criminal Appeals (CCA), an intermediate appellate court.
- The CCA agreed that unlawful command influence had occurred but found that the military judge had abused his discretion with the remedy of dismissal.
- The CCA reversed the trial court's dismissal and remanded the case for the military judge to select an appropriate remedy short of dismissal.
- Appellant Gore then petitioned the U.S. Court of Appeals for the Armed Forces (the highest military court) for review, which was granted.
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Issue:
Does a military judge abuse their discretion by dismissing charges with prejudice as a remedy for unlawful command influence when a commanding officer orders a subordinate not to testify for the defense and chills other potential witnesses?
Opinions:
Majority - Judge Gierke
No, a military judge does not abuse their discretion by dismissing charges with prejudice under these circumstances. The military judge’s findings of fact were not clearly erroneous, and the decision to dismiss the charges with prejudice was within the range of available remedies for such an egregious violation. The court reviews the military judge's choice of remedy for an abuse of discretion, which occurs only if there is a 'clear error of judgment.' Here, the military judge made detailed credibility findings, concluding that the commanding officer, Commander Morton, had engaged in a 'rabid form of unlawful command influence' that 'shocked the conscience of this court.' The judge found that the CO's actions deprived Gore of favorable testimony from Chief Metheny and likely chilled any other potential defense witnesses from the command. Because the judge determined that lesser remedies would be insufficient to remove the 'chilling hand of the convening authority' and ensure a fair trial, the 'drastic remedy' of dismissal with prejudice was within the judge's discretion. The court emphasized that unlawful command influence is the 'carcinoma of the military justice system' and that judges must be able to 'surgically eradicate' it to protect the integrity of the proceedings.
Analysis:
This case strongly affirms the discretionary power of military judges to impose the ultimate sanction—dismissal with prejudice—to combat unlawful command influence. It establishes that when a commander's interference is severe and its prejudicial effects cannot be cured, an appellate court should defer to the trial judge's choice of remedy, especially when it is based on firsthand observations of witness demeanor and credibility. The decision reinforces the principle that unlawful command influence is the 'mortal enemy of military justice' and that protecting the accused's right to a fair trial, including access to witnesses, can outweigh the government's interest in prosecution. This precedent emboldens military judges to take decisive action and serves as a significant deterrent to commanders who might consider interfering in the judicial process.
