Army Court of Criminal Appeals

United States v. Ellis

LTC Ellis was convicted because of

certain acts, to wit: with the intent to humiliate, harass, or degrade the spouse of the accused, sent said a video in which he describes said clothing as, "[Prostitute] dresses," and stating, "I guess my cousin taught you real good how to dress like a [prostitute], right," or words to that effect; and Three, that under the circumstances the accused's acts constituted conduct unbecoming an officer. 

First the Court notes that the private speech raises a First Amendment issue. The problem then becomes a failure to instruct the members 

The parties continue to disagree whether appellant's private speech to his wife was lawful, but one point is virtually undeniable - the case presents fundamental considerations of the First Amendment's reach and limits. See United States v. Hartwig, 39 M.J. 125, (C.M.A. 1994). Here, the military judge did not explain why he omitted any instructions regarding the First Amendment interests plainly presented in the case. As best we can tell, he apparently assessed appellant's speech was unprotected and therefore, no specific instructions regarding constitutional implications were required.

"When an alleged violation of art. 133 is based on an officer's private speech, the test is whether the officer's speech poses a 'clear and present danger' that the speech will, 'in dishonoring or disgracing the officer personally, seriously compromises the person's standing as an officer." Hartwig, 39 M.J. at 128 (citing Part IV, Para. 59c(2), Manual for Courts-Martial (1984)). The military judge incorrectly withheld the military-specific "clear and present danger" standard from the factfinder. Along with evaluating the unique facts of a case, the factfinder must be aware of the relevant law. While the law requires us to presume a military judge understands it - it is equally clear a panel does not enjoy the same presumption.

Instead, panel members must obtain all operative legal guidance from the judge. Without proper explanation as to the "clear and present danger" legal standard applicable to a case involving an officer's private speech, appellant's panel was unable to consider this critical factor in reaching its guilty finding.

Conviction set aside a retrial may be conducted.