United States v. Payne
3 M.J. 354, 1977 CMA LEXIS 9014 (1977)
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Rule of Law:
An Article 32 investigating officer, who performs a judicial function, violates the accused's right to an impartial pretrial investigation by engaging in ex parte communications with the trial counsel. Such improper conduct creates a rebuttable presumption of prejudice against the accused.
Facts:
- The appellant was a service member accused of mishandling classified material and other related offenses.
- Major Payne, an officer without legal training, was appointed as the Article 32 investigating officer for the appellant's case.
- A different officer, Major Runke, who did not serve in a prosecutorial capacity, was appointed to serve as Major Payne's impartial legal advisor.
- Upon his appointment, Major Payne met with the trial counsel, Captain Gravelle, for a briefing on the facts and evidence of the case.
- Despite Major Runke's availability, Major Payne chose to confer with Captain Gravelle on seven subsequent occasions without the presence of defense counsel.
- These ex parte discussions covered topics Major Payne characterized as procedural, but included substantive legal issues such as evidentiary standards, burdens of proof, and the legality of the search that produced incriminating evidence against the appellant.
Procedural Posture:
- The appellant was charged with violations of Articles 92, 121, and 134 of the Uniform Code of Military Justice.
- Following an Article 32 investigation, the appellant was convicted by a court-martial and sentenced.
- The convening authority approved the findings and sentence.
- The U.S. Army Court of Military Review (intermediate appellate court) affirmed the conviction and sentence.
- The U.S. Court of Military Appeals (highest military court) granted review to determine if the appellant was denied his pretrial rights under Article 32.
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Issue:
Does an Article 32 investigating officer's ex parte communications with the trial counsel regarding procedural and substantive matters of the case violate the accused's right to an impartial pretrial investigation?
Opinions:
Majority - Fletcher, C.J.
Yes. An Article 32 investigating officer's ex parte communications with the trial counsel violate the standards of neutrality, detachment, and independence required for an impartial pretrial investigation. The court reasoned that an Article 32 investigation is judicial in nature, requiring the investigating officer to function as a neutral judicial officer. Citing Supreme Court precedent like Shadwick v. City of Tampa, the court held that even non-lawyer judges must maintain neutrality and independence. By engaging in ex parte discussions with the prosecutor about both procedural and substantive matters, Major Payne abandoned his required impartiality. The court adopted the ABA standard prohibiting ex parte communications and explicitly overruled United States v. Young, which had permitted a prosecutor to also serve as a legal advisor to the investigating officer. The court established a presumption of prejudice when such improper communication occurs, but found that in this specific case, the government overcame the presumption with clear and convincing evidence, thus not requiring reversal.
Concurring-in-part-and-dissenting-in-part - Cook, J.
Yes. The investigating officer acted improperly by engaging in ex parte consultations with the trial counsel. However, Judge Cook disagreed with the majority's decision to overrule United States v. Young, viewing it as unnecessary. He noted that the investigating officer also consulted with defense counsel, suggesting a desire for information rather than improper partiality. Judge Cook also argued that the substantive advice given by the prosecutor regarding the relaxed evidentiary rules and burden of proof at an Article 32 hearing was legally correct. He further questioned whether the legality of a search is a proper subject for an Article 32 investigation at all. Ultimately, he concurred in affirming the conviction because the record demonstrated that the investigating officer remained impartial and the accused was not prejudiced by the procedural error.
Analysis:
This decision significantly strengthens the due process protections for service members during the pretrial phase of the military justice system. By overruling United States v. Young, the court created a bright-line rule against prosecutors serving as legal advisors to Article 32 investigating officers, thereby enforcing a stricter separation of functions. The establishment of a rebuttable presumption of prejudice for improper ex parte communications shifts the burden to the government to prove the error was harmless, deterring such conduct and reinforcing the requirement for judicial neutrality in preliminary hearings. This ruling enhances the perception and reality of fairness in the military's pretrial screening process.
