Petition for Writ of Certiorari — Murphy v. United States

— : —-

| Supreme Court, U.S,

Ro Ggé 4, A aa FILED

APR 19 3999

No. /

JOSEPH ria, JR.

a - _

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

—e eo &

ROBERT E. MUPRHY, JR., PETITIONER

v.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF MILITARY APPEALS

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

PAUL M. DANKOVICH

Captain, Office of The Judge

Advocate General

United States Air Force

CHARLES E. AMBROSE, JR.

Major, Office of The Judge

Advocate General

United States Air Force Reserve

Counsel for Petitioner

APRIL 1989

QUESTION PRESENTED

Whether the petitioner was denied due process of law

when his military jury was composed of some members

who were not independent of each other.

Q)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Constitutional and Regulatory Prov

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix A

Appendix B

Appendix ¢

Appendix D

Appendix f

Yt , > ~

Cases

Cooke v. Orser, 12M 334 MA Ix.

Tumey v. Ohio, 273 U.S. S1 92

l nited States , 4 cc rain 2 MM « M 4 I5—

nited States v. Garcia, 15 M.J. 864(A.C.M_R 783

l

United States v. Harris, 13 M.J. 288 (C.M.A. 198

l

nited States v. Murphy, 23 M 69 At \

1986)

United States \ Murph) 23 M 764 A | \

1986)

United States v. Murphy, 26 M.J. 454(C.M.A,. 1988

United States v. Murphy, N¢ 25477 (f rev) (A.t Mi

Oct. 28, 1988)

Inited States v. Murphy, M.J (C.M.A. 1989

nited States v. Smart, 21 M.J. 15 (C.M.A. 1985)

nited States v. Thomas, 22 M.J. 388 (C.M.A. 1986)

~= Ooo

Inited States v. Wood, 48 C.M.R. 528 (C.M.A. 1974)

» *

~

+

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rN

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No.

ROBERT E. MUPRHY, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

THE UNITED STATES COURT OF MILITARY APPEALS

The petitioner, Robert E. Murphy, Jr., respectfully

prays that a writ of certiorari issue to review the judgment

of the United States Court of Military Appeals entered in

his case on March 9, 1989.

OPINIONS BELOW

The initial opinion of the United States Air Force Court

of Military Review is reported at 23 M.J. 690

(A.F.C.M.R. 1986) (Appendix A). A subsequent opinion,

based on a Government request for reconsideration, is

reported at 23 M.J. 764 (A.F.C.M.R. 1986) (Appendix B).

The opinion of the United States Court of Military Ap-

peals is reported at 26 M.J. 454 (C.M.A. 1988) (Appendix

C). Upon remand the United States Air Force Court of

Military Review issued an unreported decision on October

28, 1988 (Appendix D). Finally, the March 9, 1989, order

of the United States Court of Military Appeals is reported

at __. M. J. __ (C.M.A. 1989) (Appendix E).

(1)

JURISDICTION

The final order of the United States Court of Military

Appeals was entered on March 9, 1989. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1259(3) (Supp III

1985) and 10 U.S.C. § 867(h) (Supp Iil 1985).

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

No person shall be . . . deprived of life, liberty, or

property without due process of law... .

R.C.M. 912 (f)(1), Manual for Courts-Martial, United

States, 1984, provides the following:

(f) Challenges and removal for cause.

(1) Grounds. A member shall be excused for cause

whenever it appears that the member:

(A) Is not competent to serve as a member

under Article 25(a), (b), or (c);

(B) Has not been properly detailed as a member

of the court-martial;

(C) Is an accuser as to any offense charged;

(D) Will be a witness in the court-martial;

(E) Has acted as counsel for any party as to any

offense charged;

(F) Has been an investigating officer as to any

offense charged;

(G) Has acted in the same case as convening

authority or as the legal officer or staff judge ad-

vocate to the convening authority;

(H) Will act in the same case as reviewing au-

thority or as the legal officer or staff judge ad-

vocate to the reviewing authority;

(1) Has forwarded charges in the case with a

personal recommendation as to disposition;

(J) Upon a rehearing or new or other trial of

the case, was a member of the court-martial

which heard the case before;

(K) Is junior to the accused in grade or rank,

unless it is established that this could not be

avoided;

(L) Is in arrest or confinement;

(M) Has informed or expressed a definite opin-

ion as to the guilt or innocence of the accused as

to any offense charged;

(N) Should not sit as a member in the interest

of having the court-martial free from substantial

doubt a- to legality, fairness, and impartiality.

STATEMENT OF THE CASE

The petitioner, an Air Force Staff Sergeant (E-5), was

tried by a general court-martial on April 22, 1986, at

Royal Air Force Bentwaters, England. He pled guilty to

commiiting sodomy with a child under 16 years of age,

assault, and multiple allegations of indecent acts and liber-

ties with a child under the age of 16. The petitioner was

sentenced to a dishonovable discharge, confinement for 10

years, and reduction to Airman Basic (E-1). The petitioner

elected to have officer members decide the sentencing por-

tion of his trial.! The defense challenged two of the senior

' The terms “members” or “court members” refer to the military

jurors. “Senior” and “junior” court members refer to the relative ranks

oft the military jurors.

4

court members on the basis that they actually or potential-

ly wrote or endorsed the Officer Effectiveness Reports

(OERs) of two junior court members.? The trial judge

denied the challenges because he was convinced that these

members could fashion a sentence based solely upon the

evidence presented.

The United States Air Force Court of Military Review

set aside the sentence. United States v. Murphy, 23 M.J.

690, 691 (A.F.C.M.R. 1986). The Court expressed its con-

cern about “the fact that the challenged member was in a

position to improperly influence the determination of the

accused’s sentence.” Jd. This decision was affirmed upon

reconsideration. United Siates v. Murphy, 23 M.J. 764

(A.F.C.M.R. 1986). The United States Court of Military

Appeals reversed the decision of the United States Air

Force Court of Military Review, and remanded the case on

matters unrelated to this appeal. United States v. Murphy,

26 M.J. 454 (C.M.A. 1988}. The reversal was predicated

on the view that “the Court of Military Review eired in

establishing a per se rule of disqualification for a senior

member of the court-martial who writes or endorses an ef-

ficiency report of a junior member.” Jd. at 455. Upon a

subsequent review, the United States Court of Military

2 An OER is a required evaluation that must be accomplished on

every Air Force officer. This evaluation is a comprehensive assessment

of an officer’s professional and personal life. These evaluations are

prepared on a regular basis (usually annually), and are written by a

superior officer who is responsible for and familiar with the officer

being evaluated. The officer who writes the evaluation is known as a

rater. Subsequent evaluators are known as endorsers. An endorser is

usually a more senior officer (by virtue of rank and/or position) than

the rater. As such, endorsers provide input from what may be termed

“upper level management.” OERs are utilized in determining an of-

ficer’s fitness and eligibthty for promotions, assignments, schools, and

a variety of other matters that are central to an officer’s career.

Appeals affirmed the remanded decision of the United

States Air Force Court of Military Review. United States

v. Murphy, __ M.J. __ (C.M.A. 1989).

REASONS FOR GRANTING THE WRIT

Article 16, U.C.M.J., provides that an accused may

elect to be tried before a military jury (consisting of at

least five members) or military judge alone. In the case sub

jJudice, the petitioner selected a military jury composed en-

tirely of officer members.

Military courts, by virtue of their rank structure, are

different from their civilian jury counterparts. United

States v. Accordino, 20 M.J. 102, 104 (C.M.A. 1985).

Hence, they possess a greater potential for abuse. Spe-

cifically, military courts are vulnerable to the tentacles of

command influence. Command influence is neither a

minor nor tolerable aspect of military justice. Instead,

“fc]Jommand influence is the mortal enemy of military

justice.” United States v. Thomas, 22 M.J. 388, 393

(C.M.A. 1986). As such, one of the major objectives of

the Uniform Code of Military Justice is the elimination of

command influence. United States v. Wood, 48 C.M.R.

528, 531 (C.M.A. 1974).

OERs are more than a mere evaluation. They are the

“ticket” to a successful Air Force career. They are the com-

mand tool which directs the destiny of each and every Air

Force officer. Since OERs are critical to the promotion

system, they thereby have a direct effect on an officer’s

pay and retirement. In short, OERs are the yardsticks by

which careers are measured.

In the instant case, the defense challenged two senior

members who actually or potentially had an impact on the

OERs of two junior court members. While the petitioner

does not assert that the senior members acted unscrupu-

6

lously, the petitioner does question the “chilling effect” on

the junior members. The junior court members may have

been inhibited or influenced based upon their perceptions

of how their raters or endorsers viewed the evidence.

Hence, they may have sentenced the petitioner on the basis

of misplaced perceptions, and not upon the evidence pre-

sented. Clearly, their initial disclaimers are neither

dispositive nor controlling. United States v. Harris, 13

M.J. 288, 291 (C.M.A. 1982). Moreover, there is no

guarantee that their initial disclaimers survived the sig-

nificant and inherent pressures of the deliberative process.

Hence, “[p]rejudice must be suspected. . . .” United States

v. Smart, 21 M.J. 15, 20 (C.M.A. 1985).

This Court has addressed a somewhat similar sitt ation.

In Tumey v. Ohio, 273 U.S. 510 (1927), this Court struck

down a State statute which permitted a town mayor to sit

as a judge in cases involving the unlawful possession of

liquor. This Court held that the petitioner was denied due

process of law because the judge’s compensation was made

a function of the fines he adjudged. That is, this Court

found that the petitioner was denied due process of law by

virtue of the judge’s pecuniary interest in convicting and

sentencing the petitioner. Moreover, this Court an-

nounced that “the requirement of due process of law in

judicial procedure is not satisfied by the argument that

men of the highest honor and the greatest self-sacrifice

could carry it on without danger of injustice.” Jd. at 532.

In the instant case, there is the profound danger that the

junior members, like the mayor/judge, were influenced by

self-serving pecuniary interests. Curiously, the United

States Court of Military Appeals never addressed this

issue. Instead, it was content with relying upon “the in-

tegrity and character” of the officer corps. United States v.

Murphy, 26 M.J. 454, 456 (C.M.A. 1988). While such at-

tributes are laudable, they are grossly inadequate for in-

Suring due process of law.

R.C.M. 912(f), Manual for Courts-Martial, United

States, 1984, enumerates the recognized disqualifications

for cause. While this issue is not expressly addressed in this

rule, it is properly encompassed within R.C.M. 912(f)(1)

(N), Manuai for Courts-Martial, United States, 1984.

Specifically, there is “substantial doubt” about the

“fairness” of permitting such members to remain on the

petitioner’s military jury. The United States Air Force

Court of Military Review shared a similar concern when it

held that “we read Harris as an attempt to insure that the

military justice system is not only fair, but seen by others

to be fair.” United States v. Murphy, 23 M.J. 764, 765

(A.F.C.M.R. 1986). Likewise, the record is devoid of any

evidence to suggest that military exigencies shaped the

composition of the petitioner’s military jury. United States

v. Garcia, 15 M.J. 864 (A.C.M.R. 1983).

It is axiomatic that military members are entitled to due

process of law. Cooke v. Orser, 12 M.J. 335, 338 (C.M.A.

1982). Likewise, it is self-evident that when OER relation-

ships are permitted to remain on a military jury, the result

is a denial of due process. In this context, the OER system

evolves into improper command influence. OERs are pre- -

pared by those in “command” for the benefit of “com-

mand.” It is a matter of common knowledge that OERs

may be the single most powerful force in an Air Force of-

ficer’s career. As such, it is clearly erroneous to permit a

junior member to serve on the same military jury with the

very person or persons who prepare or endorse this career

determining document. Hence, such an arrangement con-

stitutes a denial of due process.

While this case has no civilian counterpart, this case is

especially significant to the military community. By deny-

ing the petitioner relief, the United States Court of Mili-

8

tary Appeals has now institutionalized a form of com-

mand influence. Namely, every branch of service may now

deny, with impunity, the due process rights of similarly

situated service members. As a result, every court-martial

is now potentially vulnerable to this insidious form of

command tampering. Without Supreme Court interven-

tion this problem will continue unabated. That is, no

civilian court will ever wrestle with this type of issue.

Moreover, the United States Court of Military Appeals

has expressly created this rogue elephant. Hence, the peti-

tioner’s cause rests solely with this Court.

CONCLUSION

The petitioner submits that he has suffered a denial of

due process of law. Therefore, his petition for a writ of

certiorari should be granted.

RICHARD F. O’HAIR

Colonel, Office of The Judge

Advocate General

United States Air Force

HQ USAF/JAJD

Bldg 5683

Bolling AFB, DC 20332-6128

(202) 767-1562

Counsel of Record

PAUL M. DANKOVICH

Captain, Office of The Judge

Advocate General

United States Air Force

CHARLES E. AMBROSE, JR.

Major, Office of The Judge

Advocate General

United States Air Force Reserve

Counsel for Petitioner

APPENDICES

APPENDIX A

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 25477

UNITED STATES

STAFF SERGANT ROBERT E. MURPHY, JR., FR 317-58-9430

UNITED STATES AIR FORCE

5 Nov. 1986

Sentence adjudged 22 April 1986 by GCM convened

at Royal Air Force Bentwaters, England. Military

Judge: N. Steven Linder.

Approved sentence: Dishonorable discharge, confine-

ment for ten (10) years and reduction to airman basic.

Appellate Counsel for the Appellant: Colonel Leo L.

Sergi and Major Charles E. Ambrose. Appellate

Counsel for the United States: Colonel Kenneth R.

Rengert, Colonel Joe R. Lamport and Lieutenant

Colonel Morris A. Tanner, Jr.

Before

HODGSON, FORAY and MICHALSKI

Appellate Military Judges

(la)

2a

DECISION

Hopacson, Chief Judge:

The facts in United States v. Harris, 13 M.'. 288

(C.M.A. 1982), an Air Force trial, are virtually identical to

those before us today. In Harris, supra, the Court of Mili-

tary Appeals held that the trial judge erred in denying a

challenge for cause against a member who was the presi-

dent of the court and who wrote or endorsed the effective-

ness report of three other members. There, the trial judge

after receiving the challenged member’s assurances that he

had no personal interest in the case and would remain im-

partial, denied the challenge stating:

[The member] indicated that he had no direct per-

sonal interest in the results of the trial and that he was

free, mentally, to render a fair and impartial verdict

after hearing the evidence and law. I will deny the de-

fense’s challenge for cause.

The Court of Military Appeals found this rationale inade-

quate, as a matter of law, as a basis for denying the chal-

lenge. The Court went on to state that “where circum-

stances are present which raise ‘an appearance of evil’ in

the eye of disinterested observers, mere declarations of im-

partiality, no matter how sincere, are not sufficient by

themselves to insure legal propriety.” Harris, supra, at

page 292. The Court pointed out that disclaimers of this

nature are not unusual in military or civilian practice when

a court member is challenged on the basis of actual bias. /f

placed emphasis on the fact that the challenged member

was in a position to improperly influence the determina-

tion of the accused’s sentence.

In the case at bar, the president of the court and another

senior member, both colonels, wrote or endorsed the ef.-

fectiveness reports on two other members. Both colonels

3a

assured the trial judge that this circumstance would not be

used by them in an attempt to influence the judgment of

the other members. The trial judge, in denying the chal-

lenge to both, indicated:

I observed Colonel [A] and Colonel [C] while they

were answering questions; I was most impressed with

their demeanor and most impressed with their desire

to put those matters aside and decide the cases solely

on the evidence without regard to their relationships

to these individuals.

In our view there is not a significant difference between

the situation described in Harris where the Court of

Military Appeals found that the trial judge erred in deny-

ing the challenge for cause, and this case. While we are

confident that the challenged members were sincere in

their declarations of impartiality, the guidance set forth in

United States v. Harris, supra, is clear. |

Since the appellant’s conviction of sodomy with a child

under 16 years of age, assault, and multiple allegations of

indecent acts with a child under 16 years of age is based on

a pre-trial agreement properly entered into, the findings of

guilty as to those offenses are affirmed. For the reasons

stated, the sentence is set aside. A rehearing on sentence

may be ordered.

Senior Judge ForAy and Judge MICHALSKI concur.

4a

APPENDIX B

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 25477 (recon)

UNITED STATES

v.

STAFF SERGANT ROBERT E. MurPuy, JR., FR 317-58-9430

UNITED STATES AIR FORCE

12 December 1986

Sentence adjudged 22 April 1986 by GCM convened

at Royal Air Force Bentwaters, England. Military

Judge: N. Steven Linder.

Approved sentence: Dishonorable discharge, confine-

ment for ten (10) years and reduction to airman basic.

Appellate Counsel for the Appellant: Colonel Leo L.

Sergi and Major Charles E. Ambrose. Appellate

Counsel for the United States: Colonel Kenneth R.

Rengert, Colonel Joe R. Lamport and Lieutenant

Colonel Morris A. Tanner, Jr.

Before

HODGSON, FORAY and MICHALSKI

Appellate Military Judges

Sa

DECISION UPON RECONSIDERATION

Hopason, Chief Judge:

On consideration of appellate government counsel’s

MOTION FOR RECONSIDERATION, dated 20

November 1986, and noting that appellate defense counsel

does not oppose the MOTION FOR RECONSIDERA-

TION,

NOW, THEREFORE, it is by the Court, this 12th day

of December 1986,

ORDERED:

That the MOTION FOR RECONSIDERATION be and

the same is, hereby GRANTED.

In our original decision, United States v. Murphy, 23

M.J. 690 (A.F.C.M.R. 1986), we concluded that the trial

judge erred in not granting a challenge for cause against

senior members of the panel who wrote or directly en-

dorsed the effectiveness reports of two other members.

Our reading of United States v. Harris, 13 M.J. 288

(C.M.A. 1982) led us to reason that such a circumstance

raised “an appearance of evil in the eye of disinterested

observers” notwithstanding sincere declarations of impar-

tiality by the challenged members.

Appellate government counsel filed a motion for recon-

sideration of that decision urging that we misread Harris

and that two additional factors were present in Harris that

are not present here, i.e., the challenged member there was

the chairman of the base resource protection committee

and additionally he supervised the two victims of the al-

leged theft. They further suggest that our per se rule of dis-

qualification in this area makes it extremely difficult at

many installations to assemble a court to include senior

members who are not potential additional raters or en-

dorsers of other members.

6a

Addressing the second concern first, we find it difficult

to believe that a special court-martial convening authority

cannot select at least three members who are not dis-

qualified under the circumstances we considered in Mur-

phy, or that a general court-martial convening authority

cannot select at least five. See Article 16(1)(A) and (2)(A),

U.C.M.J., 10 U.S.C. § 816(1)(A), (2)(A). Accordingly,

there appears to be no substantial impact on the ad-

ministration of military justice because of the rule we are

espousing. We did not in our original decision nor do we

today expand the category of individuals subject to those

members who are “potential additional raters or endorsers

of other members.” Rather, our prohibition is against

members rating other members who are, in the ordinary

course of affairs, in their direct supervisory chain. The

rater-ratee relationship must be actual not merely a

possibility. See generally United States v. Carfang, 19

M.J. 739 (A.F.C.M.R. 1984).

We acknowledge there are factual differences in Harris

that are not present in this case; however, we read Harris

as an attempt to insure that the military justice system is

not only fair, but seen by others to be fair. We consider

the holding in our initial Murphy decision to be a logical

extension of that principle. We are aware that a higher ap-

pellate court might well disagree with our conclusion and

the reasoning supporting it. We welcome their guidance.

Appellate government counsel also suggest that our

creation of a per se rule regarding challenges in this area

will create turmoil in cases already tried but pending ap-

peal. This is a reasonable concern. Our decision in Mur-

phy does create a basis for challenge that the trial bench

and the bar were unaware of. The granted relief in a case

may be limited to that appellant whose case was chosen as

the vehicle for establishing the new standard. See Desist v.

United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L.Ed.2d

Ta

248 (1969). Accordingly, the new standard will be applied

prospectively to cases tried 30 days from the date of this

decision. United States v. Goode, 1 M.J. 3 (C.M.A. 1975);

United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247

(1969); United States v. Donohew, 18 U.S.C.M.A. 149, 39

C.M.R. 149 (1969).

Except as modified herein, our decision in the appeal of

United States v. Murphy, 23 M.J. 690 (A.F.C.M.R. 1986)

is

AFFIRMED.

Senior Judge Foray and Judge MICHALSKI concur.

8a

APPENDIX C

U.S. COURT OF MILITARY APPEALS

No. 56,897

ACM 25477

UNITED STATES, APPELLANT AND CROSS-APPELLEE

Vv.

ROBERT E. MuRPHY, JR., STAFF SERGANT, U.S. AIR FORCE,

APPELLEE AND CROSS-APPELLANT

Sept. 26, 1988

For Appellant: Major William J. Reichart (argued);

Colonel Leo L. Sergi (on brief); Major Charles E. Am-

brose, Jr. and Major Timothy J. Malloy.

For Appellee: Lieutenant Colonel Morris A. Tanner, Jr.

(argued); Colonel Joe R. Lamport and Lieutenant Colonel

Robert E. Giovagnoni (on brief).

OPINION OF THE COURT

Cox, Judge:

The accused was tried by a general court-martial com-

posed of officer members at Royal Air Force Bentwaters,

England. Fursuant to his pleas, he was found guilty of

sodomy with a child under the age of 16 years, assault and

battery on his wife, and eleven specifications alleging tak-

ing indecent liberties or committing indecent acts with a

9a

female under the age of 16, in violation of Articles 125,

128, and 134, Uniform Code of Military Justice, 10

U.S.C. §§ 925, 928, and 934, respectively. He was sen-

tenced to confinement for 10 years, reduction to E-1, and

a dishonorable discharge. The convening authority ap-

proved the sentence. Citing United States v. Harris, 13

M.J. 288 (C.M.A.1982), the Court of Military Review

held that the military judge erred in failing to grant chal-

lenges against two senior members of the court-martial,

because they wrote or endorsed the effectiveness reports

on two other members. 23 M.J. 690 (1986). On recon-

sideration, although recognizing factual distinctions be-

tween Harris and the case at bar, the court adhered to its

Original decision establishing a per se rule of disqualifi-

cation of a member who rates or endorses the effectiveness

report of other members of that court-martial. 23 M.J.

764 (1986). The Judge Advocate General certified the fol-

lowing issue to this Court:

WHETHER THE AIR FORCE COURT OF MILI-

TARY REVIEW ERRED AS A MATTER OF LAW

IN ESTABLISHING A RULE THAT A MEMBER

WHO WRITES OR ENDORSES THE OER [OFFI-

CER EFFECTIVENESS REPORT] OF ANOTHER

MEMBER IS PER SE SUBJECT TO A CHAL-

LENGE FOR CAUSE.

Additionally, this Court granted review of the following

issues upon a cross-petition filed by the accused:

10a

WHETHER THE MILITARY JUDGE ERRED BY REFUS-

ING TO ADMIT INTO EVIDENCE DEFENSE EXHIBIT V,

AN EXCERPT FROM CHAPTER V of AFR 125-18.

WHETHER THE MILITARY JUDGE ERRED BY PRE-

VENTING DEFENSE COUNSEL FROM ARGUING ANY

PERIOD OF CONFINEMENT OVER EIGHTEEN MONTHS

WOULD MOST LIKELY PREVENT THE ACCUSED FROM

BEING ACCEPTED INTO THE 3320th CORRECTION AND

REHABILITATION SQUADRON (CRS).

We will address the certified issue first. Upon voir dire,

the president of the court-martial stated that he was in the

chain-of-command of two junior members and that, while

he was normally not their reporting official, he might be

required to sign as an additional rater if the senior officer

of the unit was not present. Additionally, another senior

member observed that he was the reporting official for one

other member and a reporting official once removed for a

second member. All of the members involved in the chain-

of-command or rating regime raised during voir dire

agreed that rank or position of the senior members would

not affect their ability to render impartial judgment. The

military judge, after noting the disclaimers and the de-

meanor of the members involved, denied the defense

challenges to the two senior members.

We hold that the Court of Military Review erred in

establishing a per se rule of disqualification for a senior

member of the court-martial who writes or endorses an et-

ficiency report of a junior member.

Although we held that a senior member of a court

martial who rated other members was disqualified in

United States v. Harris, supra, an examination of that case

reveals that additional and more compelling reasons sup-

lla

ported the conclusion that the member was disqualified.

Specifically, the lead opinion observed that the member in

question also worked closely with and rated two of the vic-

tims of the thefts for which the accused was charged and

was chairman of the base-resource protection committee.

Additionally, two of the victims had advised him of some

of the facts of the case. Indeed, in his opinion concurring

in the result, Judge Cook observed that “[b]y far the most

significant of the allegedly disqualifying factors cited was

. . . [the member’s] professional relationship with two of

the seven theft victims.” Jd. at 293. Furthermore, although

the member’s endorsing or writing efficiency reports of

three other persons was one of several factors in Harris,

the lead opinion relied upon United States v. Deain, 5

U.S.C.M.A. 44, 17 C.M.R. 44 (1954). An examination of

Deain reflects that it, too, was based on factors in addition

to the one at issue. Specifically, the author of the lead

opinion in Deain observed:

It may be conceded that the mere fact that the

senior, Or other member of the court, coincidentally

has the duty to prepare and submit a fitness report on

a junior member, in and of itself, does not affect the

junior’s “sense of responsibility and individual in-

tegrity by which men judge men.” Dennis v. United

States, 339 U.S. 162, 94 L.Ed. 734, 70 S.Ct. 519. So,

if, as in the hypothetical case cited by the board of

review, the convening authority designates two of-

ficers to serve on a court, one of whom is the normal

reporting senior of the other, no reasonable man

would believe that the senior is put in a position to ex-

ert undue control over the deliberations of the other.

Their association as court members and the submis-

sion of a fitness report is not incompatible. We

seriously doubt that either member would give

12a

thought to the fact that one is charged with the re-

sponsibility of reporting on the general fitness of the

other. However, there is a different situation in the

instant case.

5 U.S.C.M.A. at 52, 17 C.M.R. at 52. While the senior

member in Deain wrote the efficiency reports of other

members, the efficiency reports in question were not the

“usual kind.” Rather, the senior officer was judging,

within the context of the efficiency report, the me:nbers’

performance of duty as permanent members of a court-

martial, rather than the performance of other military

duties. Furthermore, the senior member in question ac-

knowledged that he gave new court members pretrial “in-

doctrinations,” which contained his interpretations of the

law. Thus, neither United States v. Harris nor United

States v. Deain, both supra, can be read as establishing a

per se rule for disqualification of a senior court member

who prepares and submits a fitness report on a junior

member in the normal course of events.

In ruling on the qualifications of court members who

are not specifically disqualified within the provisions of

R.C.M. 912(f)(1), Manual for Courts-Martial, United

States, 1984, we have shown great deference to the mili-

tary judge’s exercise of discretion. United States v. Huitt,

25 M.J. 136 (C.M.A.1987); United States v. Towers, 24

M.J. 143 (C.M.A.1987); United States v. Reynolds, 23

M.J. 292 (C.M.A.1987). We have examined the evidence

presented in this record and conclude that it supports the

military judge’s conclusion that the challenged members

could decide the case based solely on the evidence and

without regard to their relationships with the other

members. Accordingly, we hold that the Court of Military

Review erred as a matter of law in applying a per se dis-

qualification predicated solely on the fact that a senior

l3a

member of the court-martial is involved in writing or en-

dorsing the effectiveness reports of junior members.*

*| have attempted to fashion an opinion based upon what I believe

is a correct interpretation of Article 25, Uniform Code of Military

Justice, 10 U.S.C. § 825, and the earlier precedents of this Court. I

also have tried to create a rule of law in harmony with constitutional

precedents. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83

L.Ed.2d 841 (1985). In view of Chief Judge Everett’s opinion, I feel

obligated to express several personal concerns about the Air Force

Court’s interpretation of our earlier cases. Before doing so, however, |

shall go on record as agreeing with the principle that convening

authorities should avoid placing superior-subordinate combinations

on courts-martial to the extent practicable.

I see at least three reasons why I disagree with the construction

given United States v. Harris, 13 M.J. 288 (C.M.A.1982), by the

Court of Military Review and Chief Judge Evereit:

1. Congress intended for the services to have a Uniform Code of

Military Justice, not one that is service-unique.

2. Congress created the military judge. We have consistently and

liberally given military judges the tools to deal with challenges for

cause and peremptory challenges and have admonished them to use

this power liberally. See United States v. Carter, 25 M.J. 471

(C.M.A.1988); United States v. Huitt, 25 M.J. 136 (C.M.A.1987);

United States v. Towers, 24 M.J. 143 (C.M.A.1987); United States v.

Reynolds, 23 M.J. 292 (C.M.A.1987). Let’s give the judges the oppor-

tunity to use these tools. | am an advocate of selecting as military

judges, intelligent, capable men and women of integrity and ethics,

and then /rusting them to ferret out and destroy evils and “the appear-

ance of evil.” |! am comfortably confident in my opinion that the Air

Force and the other military services have seiected such persons to

serve as judges and base my position on what I have observed when

personally reading the thousands of records of trial that pass through

my Chambers.

3. Lastly, and most importantly, the per se disqualification rule is

an afiront to the integrity and character of our field-grade officers,

and I refuse to subscribe to it. In the almost 4 years I have served on

this Court, | have reviewed over 10,000 courts-martial. I do not re-

call—but I stand to be corrected — reviewing a record of trial that has

contained a single allegation by any court member that he or she has

l4a

Turning to the granted issues, we note that defense

counsel attempted to introduce an extract of Air Force

Regulation 125-18, which sets forth criteria governing an

accused’s eligibility for entry into the 3320th Correction

and Rehabilitation Squadron. He particularly wanted to

emphasize in argument that as a criterion for eligibility, an

accused must have no more than 18 months of approved

confinement remaining to be served. We recently observed

in United States v. Griffin, 25 M.J. 423 (C.M.A.), cert.

denied, __ U.S. __, 108 S.Ct. 2849, 101 S.Ct. 886 (1988),

that an accused should be sentenced without regard to the

collateral administrative consequences of the sentence in

question. Accord United States v. Quesinberry, 12 U.S.C.

M.A. 609, 31 C.M.R. 195 (1962). Therefore, we hold that

the military judge’s rulings excluding this evidence were

within the bounds of his discretion.

The decision of the United States Air Force Court of

Military Review as to the sentence is reversed. The record

of trial is returned to the Judge Advocate General of the

Air Force for resubmission to that court for further review

of the sentence.

SULLIVAN, Judge (concurring with reservations):

| concur with the holdings and the text of the majority

opinion. However, since the footnote is personal in

nature, | do not adopt it.

been threatened or intimidated into a particular course of action by a

senior member’s role in the preparation of efficiency reports. | do not

recall having heard a single allegation that an efficiency report has

been downgraded as a result of service as a court-martial member. In-

deed, the congressional hearings giving rise to the Uniform Code of

Military Justice prove that a driving force behind the creation of the

Code was to eliminate such coercion. Article 37(b), UCMJ, 10 U.S.C.

§ 837, reflects this concern.

lSa

EVERETT, Chief Judge (concurring in part and dissenting

in part):

In United States vy. Deain, 5 U.S.C.M.A. 44, 17 C.M.R.

44 (1954), this Court invalidated an arrangement where-

under a Navy Admiral served as permanent president of a

general court-martial and submitted to the convening

authority fitness reports on two other members of the

court-martial. Although we expressed doubt that the im-

partiality of a court-martial member would be negated

simply because one was “the normal reporting senior of

the other,” id. at 52, 17 C.M.R. at 52, we concluded that,

under the circumstances, the “freedom and independence

of action” of the two members had been unduly threat-

ened. Therefore, the findings and sentence were “set

aside”; and, in “the interests of justice,” the charges were

dismissed. Jd. at 53, 17 C.M.R. at 53.

In 1968, as a result of congressional concern about the

possible use “of an effectiveness, fitness, or efficiency

report” to influence the action of court members, Article

37 of the Code, 10 U.S.C. § 837, was amended to prohibit

consideration of “the performance of duty of any” person

“as a member of a court-martial” in preparing such a

report on that person.' Art. 37(b); Pub.L.No. 90-632,

§ 2(13)(D), 82 Stat. 1338. Moreover, in order to assure

that the judges of Courts of Military Review would retain

their independence, Congress amended Article 66(g) of the

Code, 10 USC § 866(g), to prohibit a “member of a Court

of Military Review” from “prepar[ing] . . . or submit[ting]

' Article 37 also was amended to provide that a service member may

not be “give[n] a less favorable rating . . . because of the zeal with

which such member, as counsel, represented any accused before a

court-martial.” See Art. 37(b).

l6a

_. an effectiveness, fitness, or efficiency report” on any

other member of a Court of Military Review. Pub.L.No.

90-632, § 2(27)(E), 82 Stat. 1341.

In United States v. Harris, 13 M.J. 288, 292 (C.M.A.

1982), we were concerned with a defense challenge for

cause of a court member who “wrote or endorsed the fit-

ness reports of three other members.” Despite protesta-

tions by all concerned that this relationship would not in-

fluence their respective independence of judgment, we

noted that, “where circumstances are present which raise

‘an appearance of evil’ in the eye of disinterested

observers, mere declarations of impartiality, no matter

how sincere, are not sufficient by themselves to insure

legal propriety.” (Footnote omitted.)

Clearly, both Congress and this Court are concerned

about possible misuse of personnel reports to inhibit the

independence of court-martial members. Nevertheless, |

conclude that neither the Code nor our decision in Harris

requires a per se rule of disqualification if one member of

a court-martial rates another member. Instead, impartiali-

ty can be assured by means of proper voir dire on te part

of the judge and counsel, liberality in granting challenges

for cause, and instructions by the military judge to the

court-martial members that for anyone to consider their

performance as members in preparing a fitness report

would violate the Uniform Code, see Art. 37, and might

well be a crime, see Art. 98, UCMJ, 10 U.S.C. § 898.

The Court of Military Review held that a challenge for

cause should be sustained when one member of a court-

martial is “in the ordinary course of affairs in [the] direct

supervisory chain” of another member. 23 M.J. 764, 765

(1986). If the court below concluded that this per se rule

17a

was required by Harris or by the Code, then it was in er-

ror. If, however, the Court of Military Review concluded

that, within the Air Force, such a per se rule should be en-

forced for administrative convenience and in order to

avoid “an appearance of evil,” then I believe that such a

decision was within their power. These appellate military

judges are much more familiar than are the judges of this

Court with the Air Force system of officer effectiveness

reports, the impact of low ratings on a recipient’s profes-

sional career, the effect of the rating system on the be-

havior of the persons rated, and the difficulties in applying

such a rule in the field. In my view, they are entitled to rely

on their experience in overseeing the administration of

military justice in the Air Force.

Admittedly, adoption of a per se rule of disqualification

by the Air Force Court of Military Review might lead to

divergence in practice between. that service and the other

services. However, in light of the variations in practice

that exist in several other areas — such as in plea bargaining

and in the methods for delivering defense services—1

would not be troubled if the Air Force subjects itself to a

more stringent standard than do its sister services. In my

view the power of the Air Force Court of Military Review

with respect to that service is like the supervisory power of

a United States Court of Appeals within its circuit. Cf.

United States v. Boston, 7 M.J. 954 (A.F.C.M.R.1979)

(on reconsideration).

Admittedly, it may be inconvenient to appoint court-

martial members of whom none is in a direct supervisor-

subordinate relationship. However, the Court of Military

Review has the experience to evaluate the magnitude of the

problems that will be created in this regard. Moreover,

that court can decide whether it is simpler and less time-

consuming to use a per se rule than to engage in extensive

voir dire of the court members about their perceptions as

18a

to the effects of a supervisor —subordinate relationship

among some of the members. That court can determine

how important it is to avoid the poss’bility that someone

who has served on a court-martial and has not been pro-

moted or obtained a favorable assignment will complain

later that he was discriminated against by a supervisor who

had served on a court-martial with him.

The Court of Military Review decided to apply its rule of

disqualification prospectively—except for Murphy. Even

though such an approach was permissible at one time, see

Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22

L.Ed.2d 248 (1969), apparently the Supreme Court no

longer will allow an overruling decision to be made ap-

plicable only to the case in which it was rendered and not to

other cases that also were undergoing review. See Griffith

v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649

(1987). However, I am of the view that a decision can be

made entirely prospective in its application. Cf. United

States v. Carter, 25 M.J. 471 (C.M.A.1988). Thus, 1 would

not apply the per se rule of disqualification, even with

respect to the challenges for cause in the present case.

It is unclear to me whether the Court of Military Review

applied its per se rule of disqualification because it be-

lieved this was desirable for trials by court-martial in the

Air Force or whether, instead, it felt such a result was

compelled by our decision in Harris. | would, therefore,

remand the case to the court below, which may then decide

independently as to the need for a rule of per se disqualifi-

cation in the Air Force.?

2 In my view, determination of the need for a per se rule of disquali-

fication should be decided for each service by the Court of Military

Review which reviews the trials by court-martial in that service and

which is familiar with the personnel practices in that service. Cf.

United States v. Johanns, 20 M.J. 155 (C.M.A.), cert. denied, 474

U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985) (relying on a deter-

mination by the Air Force Court of Military Review as to the customs

of that service concerning fraternization).

19a

APPENDIX D

UNITED STATES AIR FORCE COURT

OF MILITARY REVIEW

ACM 25477 (f rev)

UNITED STATES

V.

STAFF SERGANT ROBERT E. Murpuy, JR., FR 317-58-9430

UNITED STATES AIR FORCE

28 October 1988

Sentence adjudged 22 April 1986 by GCM convened

at Royal Air Force Bentwaters, England. Military

Judge: N. Steven Linder.

Approved sentence: Dishonorable discharge, confine-

ment for ten (10) years and reduction to airman basic.

Appellate Counsel for the Appellant: Colonel Leo L.

Sergi, Major William J. Reichart, Major Charles E.

Ambrose, Jr. and Major Timothy J. Malloy. Ap-

pellate Counsel for the United States: Colonel Joe R.

Lamport, Lieutenant Colonel Robert E. Giovagnoni

and Lieutenant Colonel Morris A. Tanner, Jr.

Before

HODGSON, FORAY and HOLTE

Appellate Military Judges

siimaaieaeiemmmnineaimeieniciaiiimmeiiiiiiaiiniaiaeieaaa

20a

DECISION UPON FURTHER REVIEW

PER CURIAM:

In our original consideration of this case we affirmed

the appellant’s conviction for sodomy with a child under

16 years of age, assault, and multiple allegations of inde-

cent acts with a child under the age of 16, but ordered a

rehearing on the sentence. In doing so, we held that the

trial judge erred in not granting a challenge for cause

against senior members of the court-martial panel who

wrote or directly endorsed the effectiveness reports of two

other members. United States v. Murphy, 23 M.J. 690

(A.F.C.M.R. 1986), affd upon recon. 23 M.J. 764

(A.F.C.M.R. 1986). Thereafter, The Judge Advocate

General of the Air Force filed a certificate of review with

the United States Court of Military Appeals who deter-

mined that a per se rule of disqualification is not required

for a senior member of a court-martial who writes or en-

dorses the effectiveness report of a junior member. United

States v. Murphy, 26M.J 454 (C.M.A. 1988). According-

ly, our decision was reversed and the record of trial re-

turned to us for further review of the sentence.

The approved sentence is this case extends to a dishon-

orable discharge, 10 years confinement, and reduction to

airman basic which is less than the terms of the pretrial

agreement entered into by the parties.

We have considered the nature and duration of the ap-

pellant’s misconduct with his step-daughter in addition to

the other offenses involving his wife and another child.

2la

We consider the approved sentence to be entirely ap-

propriate and it is

AFFIRMED.

[SEAL]

OFFICIAL:

/S/ Mary V. Fillman

Mary V. FILLMAN

Captain, USAF

Chief Commissioner

22a

APPENDIX E

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 56897/AF

CMR Dkt. No. 25477

UNITED STATES, APPELLEE

v.

ROBERT E. Murpuy, JR., (317-58-9430), APPELLANT

ORDER

On consideration of the petition for grant of review of

the decision of the United States Air Force Court of Mili-

tary Review on further review, we conclude that there is no

merit to the issue raised by appellate defense counsel. See

United States v. Wynn, 26 MJ 405 (CMA 1988). Accord-

ingly, it is by the Court, this 9th day of March, 1989

ORDERED:

That said petition is hereby granted; and

That the decision of the Uruied States Air Force Court

of Military Review on remand is affirmed.

For the Court,

/s/ JOHN A. CutTrts, Ill

Deputy Clerk of the Court