United States v. Nix
1994 CMA LEXIS 51, 40 M.J. 6, 1994 WL 377107 (1994)
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Rule of Law:
An officer with a personal, other-than-official interest in a case is disqualified from exercising discretion in the court-martial process, and a recommendation from such an officer to refer charges to a general court-martial creates a presumption of prejudice that may invalidate a conviction.
Facts:
- The appellant, a naval instructor, was an avid golfer and was friends with Ms. Sherry Clay, a bartender at the station golf course.
- The appellant and Ms. Clay frequently engaged in banter of a sexual nature through innuendo and double entendre.
- Captain Finta, the appellant's commanding officer, was aware of an opinion among others at the golf course that the appellant and Ms. Clay were having an affair.
- Captain Finta ordered the appellant to cease bantering with Ms. Clay and to stay away from her.
- After charges were preferred against the appellant for unrelated misconduct, Ms. Clay telephoned Captain Finta to intercede on the appellant's behalf, but was rebuffed.
- Shortly before the appellant's trial, Captain Finta married Ms. Clay.
Procedural Posture:
- A pretrial investigation into appellant's misconduct was ordered by Commander J.C. Van Dyke.
- Following the investigation, Captain Finta, the special court-martial convening authority, forwarded the charges to the general court-martial convening authority with a recommendation for a general court-martial.
- At trial, appellant made a motion to dismiss the charges for selective and vindictive prosecution, which the military judge denied.
- Appellant was tried by a general court-martial, convicted of several offenses, and sentenced to confinement, total forfeitures, reduction in grade, and a bad-conduct discharge.
- The convening authority approved the sentence.
- The United States Navy-Marine Corps Court of Military Review, an intermediate appellate court, affirmed the findings and sentence.
- The United States Court of Military Appeals, the highest military court, granted review of the case.
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Issue:
May an officer with a potential other-than-official interest in a case make the discretionary recommendation that the charges be referred to a general court-martial?
Opinions:
Majority - Cox, Judge
No. An officer with an other-than-official interest in a case is prohibited from making discretionary decisions regarding that case. Captain Finta occupied an essential discretionary position in the court-martial process. His recommendation to forward the charges for a general court-martial, while not binding, cannot be assumed to have had no bearing on the ultimate decision made by the general court-martial convening authority. Because the appellant reasonably raised the issue of Captain Finta's personal bias due to his relationship with Ms. Clay (now Mrs. Finta), and the record was not developed to disprove it, the court must presume the appellant's assertions are true. The 'cloud of the alleged conflict of interest' has not been removed, and therefore, prejudice cannot be ruled out.
Dissenting - Gierke, Judge
No, but the remedy is incorrect. While the military judge erred by not gathering evidence on Captain Finta's alleged disqualification, the majority is wrong to set aside the findings and sentence without first determining if Finta was actually disqualified. This decision establishes a presumption of prejudice based on bare assertions and gives the appellant a potential windfall. The proper course of action is to order a limited post-trial hearing (a DuBay hearing) to resolve the collateral issue of whether Captain Finta was in fact biased, which would determine if any material prejudice to the appellant's substantial rights actually occurred.
Analysis:
This decision underscores the stringent requirement for impartiality in the military justice system's preliminary stages. It establishes that even the appearance of a conflict of interest or vindictiveness from a commander in a discretionary, advisory role can be sufficient to taint a prosecution. The majority's choice to presume prejudice and reverse the conviction, rather than remanding for a factual hearing as the dissent advocates, signals a low tolerance for potential command bias. This precedent may empower service members to challenge the referral of charges based on a commander's personal motives, even if that commander does not have final disposition authority.
