Court of Appeals for the Armed Forces

United States v. Shelby

In its third case of the season, CAAF addresses the application of the cumulative error doctrine to pretrial proceedings.

​Pretrial, the military judge dismissed a charge with prejudice pursuant to the cumulative error doctrine. The Government then filed an interlocutory appeal. On appeal, the United States NavyMarine Corps Court of Criminal Appeals vacated the military judge’s dismissal. We granted review to determine whether the cumulative error doctrine applied in the pretrial context. We hold that the military judge abused his discretion because the cumulative error doctrine does not apply pretrial. As the United States Navy-Marine Corps Court of Criminal Appeals reached the same conclusion, we affirm the judgment of the lower court. 

The cumulative error doctrine is an equitable remedy on appeal for, as many practitioners are aware, several errors that, while maybe individually sustainable, combined to deny an Accused of his constitutional right to a fair trial. "The cumulative error doctrine is a prejudice test that looks retrospectively at a court-martial’s execution and results to assess the cumulative effect of all plain errors and preserved errors." Slip op. at 4. 

​Procedural History
 
The Convening Authority referred charges against the Appellant for false official statement, abusive sexual contact, indecent exposure, assault consummated by battery, and indecent conduct.
 
He requested individual military defense counsel (IMC). (An Accused may request any military counsel, regardless of service, if he or she is reasonably available.)
 
Prior to trial, the military judge determined trial counsel misled the Staff Judge Advocate (a topic most certainly for another day), resulting in Unlawful Command Influence, and dismissed a charge, without prejudice, disqualified the Convening Authority, and the trial counsel.
 
The subsequent Convening Authority referred the same charges to court-martial. The Appellant again requested IMC, who was ultimately deemed not reasonably available. Appellant filed a motion to compel IMC, and was denied. The military judge ruled the denial improper.
 
The military judge ultimately dismissed one charge, WITH PREJUDICE, based on the cumulative error doctrine and the totality of the circumstances. The Government appealed. The Navy-Marine Corps Court of Criminal Appeals reversed.
 
CAAF granted review to determine whether the military judge erred in dismissing Charge II pursuant to the cumulative error doctrine.

Summarized Analysis
 
CAAF held that the cumulative error doctrine DOES NOT apply to pretrial proceedings.
 
Nevertheless, the Court continued to analyze why the military judge erred in applying a judicial doctrine he apparently had no jurisdiction to apply. While the Court’s analysis may have use in persuasive argument, it is pure dicta. Judge Sparks writing for the court suggests several reasons the MJ seemed to have in dismissing with prejudice.

[T]he military judge appears to have dismissed Charge II with prejudice based, in part, on his dissatisfaction with the UCI remedy at the first court-martial. Although the military judge had the authority to consider the totality of the circumstances in selecting a remedy to preserve the accused’s right to a fair trial, his decision to dismiss with prejudice was an abuse of discretion for two reasons. First, the military judge did not identify how the taint of the previous court-martial carried into the present court-martial, particularly in light of the fact that the military judge already had disqualified the initial trial counsel and the initial convening authority, and already had dismissed the charge and its specification without prejudice. Therefore, the UCI issue did not serve as a proper basis for the military judge to dismiss the charge and specification with prejudice. Second, the military judge remedied any interference with Appellant’s right to counsel of choice by ordering Capt Adcock to serve as Appellant’s IMC; resetting the case management deadlines to accommodate Capt Adcock’s belated appointment; and allowing Capt Adcock to supplement any pleadings already filed. Therefore, because less drastic alternatives remedied the concerns raised by the military judge, his decision to dismiss the charge and specification with prejudice constituted an abuse of discretion.

By Rodrigo Caruço