

   
   
   
   U.S. v. Rockwood



UNITED STATES, Appellee
v.
Lawrence P. ROCKWOOD, II, Captain
U.S. ARMY, Appellant
 
No. 98-0488
Crim. App. No. 9500872
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued February 26, 1999
Decided September 30, 1999
COX, C.J., delivered the opinion of the
Court, in which CRAWFORD, GIERKE, and EFFRON, JJ., joined. GIERKE, J.,
filed a concurring opinion. SULLIVAN, J., filed an opinion concurring in
part and in the result.

Counsel
For Appellant: Ramsey Clark (argued);
Lawrence W. Schilling and Colonel John T. Phelps, II (on
brief).
For Appellee: Captain Arthur J. Coulter
(argued): Colonel Russell S. Estey, Lieutenant Colonel Eugene
R. Milhizer, and Major Patricia A. Ham (on brief).
Amicus Curiae: James J. Gibson and Billy
B. Ruhling, II (Law Students) (argued); Frederic Lederer (Supervising
Attorney), Ian R. Iverson, Patrick J. McGuire, and Paul
D. Ziegler (Law Students) (on brief) - For the William and Mary School
of Law.
Military Judge: R. D. Newberry
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Chief Judge COX delivered the opinion of the
Court.
The charges in the instant case arose on September
30 and October 1, 1994, in Haiti, during the initial days of the American-led,
multinational operation designated as Operation Uphold Democracy. The granted
issues concern appellants contentions that he was denied a fair trial
due to command influence and conflict of interest "affecting virtually
the entire command"; that the military judge improperly denied production
of several defense-requested witnesses; that all of the court members were
disqualified; that the evidence of appellants guilt was insufficient to
sustain the convictions; and that the military judges instructions regarding
the defenses of justification, necessity, and duress were erroneous.1/
The Court of Criminal Appeals summarized the
circumstances leading to the charges in this case as follows:



On 31 July 1994, the United Nations (U.N.)
Security Council determined that the situation in Haiti was a threat to
the peace and security of the region. Acting under Chapter VII of the Charter
of the United Nations, the Security Council authorized U.N. Member States
to form a multinational task force (MNF) "to use all necessary means to
facilitate the departure from Haiti of the military leadership, . . . the
prompt return of the legitimately elected President [President Aristide]
and the restoration of the legitimate authorities of the Government of
Haiti, and to establish and maintain a secure and stable environment .
. . ." United Nations Security Council Resolution 940, U.N. SCOR, 3413
mtg. (1994) [hereinafter U.N.S.C. Res. 940].
On 19 September 1994, with a MNF invasion of
Haiti imminent, a team led by former President Carter negotiated an agreement
with the ruling military government in Haiti which permitted the peaceful
entry into Haiti of a MNF to accomplish the aims of U.N.S.C. Res. 940.
Elements of the 10th Mountain Division immediately began deploying into
Haiti on 19 September 1994 as part of Joint Task Force (JTF) 190. The Haitian
military government was to remain in place until the agreed return of President
Aristides government on 15 October 1994.
Appellant was a counter intelligence officer
with the 10th Mountain Divisions Office of the Assistant Chief of Staff
for Intelligence (G2). He deployed to Haiti on 23 September 1994. Appellant
was personally concerned about intelligence reports which reflected deplorable
conditions at the National Penitentiary in Port au Prince. He attempted
to initiate a JTF inspection of the National Penitentiary by raising the
issue with his superiors on the joint intelligence staff, a captain in
the staff judge advocates office, and the division chaplain. Appellant
considered the JTFs inaction toward the National Penitentiary to be contrary
to President Clintons intent [i/] and a violation of the JTFs
obligation under international law to protect human rights.
On 29 September 1994, a grenade attack near
the Haitian Presidential Palace killed several Aristide supporters and
injured many others. As a result of this attack, Major General (MG) Meade
(the 10th Mountain Division commander and the general court-martial convening
authority who referred these charges to trial) increased operational and
counter intelligence efforts to identify the attackers and to safeguard
American forces.
Appellant disagreed with the decision to increase
operational security instead of immediately inspecting the National Penitentiary.
On the morning of 30 September 1994, he filed a formal complaint with the
10th Mountain Division Inspector General (IG) requesting that the IG "[i]nform
the commanding general as soon as possible of facts that may lend the appearance
that the JTF is indifferent to probable ongoing human rights violation[s]
in PAP [Port au Prince, or National] Penitentiary." Appellants complaint
explained his concerns: "Per the intent of the U.N. resolution and the
primary cause ad bellum [that] our President addressed to the Nation
for our [] military presence, indifference to ongoing human rights violation[s]
in our direct proximity appears to me to be a subversion of that intent."
Later that day, appellant decided, without
command authorization, to "inspect" the National Penitentiary. Appellant
did not go to his appointed place of duty when his shift began that evening
because he had gone to the prison without authority. Later, after appellants
return from the prison, Lieutenant Colonel (LTC) Bragg [ii/] ordered
appellant admitted to the local combat support hospital for psychiatric
evaluation. [iii/] Appellant left the hospital without permission,
contrary to an order from the psychiatrist evaluating him, to tell LTC
Bragg what he saw at the prison. During this discussion, appellant repeatedly
and disrespectfully yelled at LTC Bragg and disobeyed orders to be "at
ease" and to "be quiet."

* * *
[i/] Appellant watched President Clintons
televised address to the nation on 15 September 1994. He recalled the President
stating that one of the reasons for U.S. involvement in Haiti was "to stop
the brutal atrocities" that were occurring in Haiti. Appellant did not
recall seeing a televised news conference on 19 September 1994, at which
President Clinton said, "My first concern, and the most important one,
obviously, is for the safety and security of our troops. General Shalikashvili
and Lieutenant General Hugh Shelton, our commander in Haiti, have made
it clear to all involved that the protection of American lives is our first
order of business."
[ii/] Lieutenant Colonel Bragg served
as the Assistant Chief of Staff for Intelligence (G2) for the 10th Mountain
Division, the Director of Intelligence for JTF 190, and the Assistant Chief
of Staff for Intelligence (J2) for the multinational forces. Appellant
worked for LTC Bragg.
[iii/] Appellants actions caused LTC
Bragg to have concerns about appellants mental health. Prior to going
to the prison, appellant, a Tibetan Buddhist, left a note on his bunk quoting
Buddhist sacred text about making "a gift of my body." The note continued,
"I have done what is legal to stop something that is plainly illegal. No[w]
you coward[s] can court-martial my dead body." Appellants note concluded
that the "action required" was "[a]ll means necessary to implement the
intent of the UN and U.S. President[]s intent on Human Rights. Take this
flag, it is soiled with unnecessary blood." Appellant fastened a U.S. flag
patch (normally worn on the battle dress uniform to identify U.S. forces)
in an upside down position to his note with a safety pin. He subsequently
"inspected" the National Penitentiary with a loaded M-16 rifle. The Haitian
prison officials summoned the military attaché from the U.S. Embassy
for assistance in disarming appellant. The attaché ultimately persuaded
appellant to unload his weapon and leave the prison.



48 MJ 501, 503-04 (1998).
In view of appellants conduct, as well as
the fast-evolving situation on the ground and the initial evaluation of
appellant at the combat support hospital (including appellants revelation
to the psychiatrist that he had been taking Prozac, an anti-depressant,
which had been prescribed by a civilian doctor, without the knowledge of
military authorities), the decision was made to evacuate appellant from
Haiti immediately.
For his conduct in Haiti, appellant was offered
nonjudicial punishment under Article 15, Uniform Code of Military Justice
(UCMJ), 10 USC § 815, along with the opportunity to resign, which
he refused. Subsequently, court-martial charges were preferred and referred
to a general court-martial.
Appellant was charged with a series of offenses
under the UCMJ arising out of his conduct on the evening of September 30
and during the following day, October 1. The charges of which he was convicted
included: (1) failing to go to his prescribed place of duty at the Joint
Task Force headquarters at the time he was required to report for duty,
2000 hours on September 30, in violation of Article 86, UCMJ, 10 USC §
886; (2) engaging in conduct unbecoming an officer on September 30, in
violation of Article 133, UCMJ, 10 USC § 933, by leaving the headquarters
area in a manner that intentionally avoided detection, jumping over the
fence surrounding the headquarters, traveling to and demanding entry at
the National Penitentiary to make an inspection that he was not authorized
to conduct, thereby endangering himself, the classified information he
possessed as a counterintelligence officer, and a fellow military officer
who came to the Penitentiary in light of appellant's activities;
(3) unlawfully departing the combat support hospital, which had become
his appointed place of duty on October 1 pending evacuation from the country,
in violation of Article 86; (4) disrespect towards his superior commissioned
officer, LTC Bragg, in violation of Article 89, UCMJ, 10 USC § 889;
and (5) willful disobedience of repeated commands from LTC Bragg to lower
his voice, "be at ease," and "stop talking," in violation of Article 90,
UCMJ, 10 USC § 890.
The court-martial, comprised of officer members,
found appellant not guilty of two specifications under Article 92, UCMJ,
10 USC § 892, for failure to obey certain orders and dereliction of
duty, and found him not guilty of portions of the charge under Article
133 involving certain of his actions at the National Penitentiary. The
court-martial sentenced appellant to a dismissal and total forfeitures.
The convening authority disapproved the entire
finding of guilty of conduct unbecoming an officer. Accordingly, he dismissed
that Charge and its specification. In all other respects, however, he approved
the findings. Regarding the sentence, the convening authority reduced the
forfeitures to $1,500 pay per month for 2 months, but he approved the dismissal.
The Court of Criminal Appeals affirmed the approved findings and sentence.
48 MJ at 513.
Particular facts relevant to each issue are
incorporated within the discussion of the issue itself.

I
In the first issue, appellant alleges unlawful
command influence and conflict of interest affecting the convening authority,
most of the command structure, the court-martial and its panel members,
and the prosecution witnesses. The allegations are an extension of those
made in appellants motion in limine at trial to disqualify
the convening authority and dismiss the charges. As at trial, appellant
points to no specific evidence of disqualifying influences or interests.
Rather, the essence of his argument is that, because he made accusations
against the command and intentionally violated its orders, and because
he has continued to criticize the conduct of Operation Uphold Democracy
through various media and human rights organizations, the entire command
was put in the position of defending its own conduct at the court-martial.
Accordingly, in appellants view, nobody in this command could have anything
to do with the processing of his case or the judging of his conduct because
the "[c]ommand would lose face" unless appellant was convicted. Thus, appellant
contends that the convening authority and court members were "judging themselves
when they judged" appellant. Final Brief at 29. We reject this thesis.
Article 37, UCMJ, 10 USC § 837, prohibits
a convening authority or anyone else from unlawfully influencing the action
of a court-martial. Further, a convening authority is disqualified if he
is an "accuser" or has "an interest other than an official interest in
the prosecution of the accused." Art. 1(9), UCMJ, 10 USC § 801(9);
RCM 504(c)(1), Manual for Courts-Martial, United States (1994 ed.). Bare
allegations of unlawful command influence "in the air," however, are not
sufficient to raise the issue. United States v. Allen, 33 MJ 209,
212 (CMA 1991), cert. denied, 503 U.S. 936 (1992). Nothing
in the instant case suggests that the convening authority here had anything
other than an official interest in the case or that he in any way sought
improperly to influence the outcome of this court-martial.
Military judges are disqualified if their "impartiality
might reasonably be questioned," if they have "personal bias or prejudice
concerning a party or personal knowledge of disputed evidentiary facts,"
or if they have acted in the case in various other disqualifying capacities.
RCM 902(a) and (b)(1). Nothing in the instant case suggests that the military
judge here was disqualified.
Court members are subjected to examination
by the parties, challenge for cause, and peremptory challenge. RCM 912(d),
(f), & (g); United States v. Modesto, 43 MJ 315, 318 (1995).
For the reasons indicated in Section III, infra, we are satisfied
that the court members here were free from command influence, bias, conflict
of interest, or other disqualifying features.
Witnesses are subjected to the "crucible of
cross-examination" to test their assertions for accuracy, bias, conflict
of interest, or other reasons to discount or disbelieve their testimony.
United States v. LeMere, 22 MJ 61, 69 (CMA 1986). The defense fully
exercised its prerogatives in this area and vindicated this important principle.
Thus, if any of the witnesses were biased, that bias was exposed through
cross-examination.
On this record, appellant has not demonstrated
that the convening authority of the 10th Mountain Division, or anyone within
the organization that acted in appellants case, should have been disqualified
from proceeding or acting on appellants case. Appellants personal conviction
that the convening authority must have felt humiliated or threatened by
appellants criticism is not sufficient to demonstrate that appellant's
trial was infected by unlawful command influence or conflict of interest.
Public criticism of military operations --
including withering critiques of strategy, tactics, personnel policies,
and human rights concerns -- is inherent in a democracy. Congress, through
the enactment of Article 138, UCMJ, 10 USC § 938, and the laws governing
the Inspector General function, 5 USC App. 3, has established specific
means of directing criticism within the armed forces. Given the significant
domestic and international consequences of military operations, there will
be few military leaders or organizations who escape such criticisms. If
a servicemember were permitted to disqualify convening authorities, panel
members, and witnesses simply by leveling or reciting critiques of military
operations, it is unlikely that any command could conduct a court-martial
involving offenses pertaining to military activities. We do not believe
that Congress, in recognizing the critical role of military justice in
maintaining good order and discipline, intended to preclude commanders
from utilizing that system in an operational setting. The traditional tools
of discovery, voir dire, challenges, and cross-examination provide a means
of identifying improper influences or interests on the part of commanders,
court-members, or witnesses. In the present case, appellant has not demonstrated
that any such influences affected the fundamental fairness of his court-martial.

II
The second issue involves appellants in
limine motion to produce as witnesses Major General (MG) Meade,
the initial commander of the joint task force (and the convening authority
in appellants case), and Brigadier General (BG) Hill.
Regarding MG Meade, civilian defense counsel
explained that the defense



want[ed] to talk to General Meade about his
understanding of what the U.N. resolution required, what President Clintons
instruction required as to command intent, what international law imposed
upon him as a general officer to do in connection with human rights. How
any order that sought to prohibit protection of human rights can be harmonized
with international law and U.S. law, and what if anything he did at any
time to protect human rights during the period.



In a written proffer designated as "expected testimony,"
the defense added that MG Meade



will further testify about what, if any,
emphasis he placed on dealing with reports of human rights violations when
issuing the mission statement and commanders intent related to operations
in Haiti, particularly in what way he responded to the Commander-in-Chiefs
directives concerning human rights issues. He will also testify as to whether
he declared that force protection was a higher priority than "stopping
brutal atrocities in Haiti."



It is not represented that the defense had ever
spoken to or tried to speak to MG Meade, or that they knew what he might
say about these matters.
Based on the proffers, the military judge could
not discern in limine the relevance of MG Meades "expected"
testimony, though he acknowledged that "[i]ts possible that his involvement
with these matters is relevant, but I cant say that based on what I know
now." Accordingly, the military judge denied the motion to order production
of the convening authority as a witness at that time, but he specifically
invited the defense to make the request again after the Governments case
was presented or at any appropriate time during the defense case. At the
same time, the judge instructed the Government to know the whereabouts
of the convening authority during the course of the trial so that he could
be brought back quickly, if necessary. Appellant does not claim that the
defense ever renewed its request for MG Meade, nor have we come across
such a request in our review.
BG Hill, also requested as a witness by the
defense, was sought for his alleged knowledge of the improved prison conditions
in Haiti in January 1995, months after appellants evacuation from Haiti.
BG Hill was assistant division commander of the 25th Infantry Division,
which succeeded the 10th Mountain Division as the command element of the
task force. The military judge declined to order production of BG Hill
on the grounds that his knowledge was "absolutely too remote, and so its
not relevant."
The Uniform Code of Military Justice grants
all parties "equal opportunity to obtain witnesses . . . in accordance
with such regulations as the President may prescribe." Art. 46, UCMJ, 10
USC § 846. The President, in turn, has provided that "[e]ach party
is entitled to the production of any witness whose testimony on a matter
in issue . . . would be relevant and necessary." RCM 703(b)(1); see
Mil. R. Evid. 401. We review judges decisions on witness production for
abuse of discretion. United States v. Miller, 47 MJ 352, 359 (1997);
United States v. Ruth, 46 MJ 1, 3 (1997).
As to BG Hill, we are satisfied the military
judge did not abuse his discretion in determining that BG Hills proposed
testimony was not relevant and denying his production as a witness.
In hindsight, it appears that the request for
MG Meade was meant to be connected with subsequent defense trial assertions
that: (1) atrocities were being committed at the National Penitentiary
on and immediately preceding September 30, 1994; and (2) by September 30,
the American-led force could readily have spared the assets to prevent
these atrocities; but (3) as a result of incompetence, culpable indifference,
or worse, the American command was unconcerned about Haitian-on-Haitian
human rights violations.
Even in retrospect, MG Meades state of mind
regarding his personal understanding of international law and the balance
he sought to strike between force protection and suppressing violence have
little to do with whether the conditions on the ground justified appellants
conduct under international law. Whatever marginal relevance MG Meades
state of mind might have had, we cannot fault the military judge for lacking
clairvoyance in limine. Moreover, the requirement of RCM
703(c)(2)(B)(i) for a synopsis of expected testimony is not satisfied by
merely listing subjects to be addressed; rather, it must set out what the
witness is expected to say about those subjects. We hold that the military
judge did not abuse his discretion in refusing to order the convening authoritys
production at that time. Moreover, in failing to renew and clarify its
request for MG Meade, as they were specifically invited to do, the defense
failed to preserve the issue.

III
The next issue pertains to appellants challenge
for cause of the members who sat in his case. Of the twelve members detailed
to the court-martial, the military judge excused one member without objection,
he dismissed five members based on defense challenges for cause, and an
additional member was excused as a result of the defenses peremptory challenge.
The defense also challenged the remaining five members for cause, but the
military judge denied those challenges. The issue before us pertains to
the correctness of the military judges decision not to strike the remaining
five members.
The issue was fully and satisfactorily treated
by the Court of Criminal Appeals, 48 MJ at 510-12, and we have only a few
observations to add to that discussion. Essentially, the trial judge permitted
extensive and broad voir dire of the prospective members, consuming well
over 500 pages of record of trial. All of the members were challenged on
a wide range of bases, including their various degrees of contact with
prospective witnesses and other court members, their knowledge of conditions
on the ground in Haiti as a result of having been there, and their exposure
to pretrial publicity.
The defense also challenged many members for
having inflexible attitudes on sentencing. During voir dire, the military
judge had permitted civilian defense counsel the latitude of questioning
the prospective members about the sentences they were likely to adjudge.
For example, counsel was allowed to ask each
of the members the following sort of question: Assume you find appellant
guilty of all the charged offenses (i.e., that he, without justification
or excuse on the 11th and 12th day after the multinational forces landing
in Haiti,2/
was twice absent without leave from his appointed place of duty, that he
disobeyed several orders, that he was disrespectful to a superior commissioned
officer, that he was derelict in his duty, and that his conduct was unbecoming
that of an officer), is there nevertheless a place in the Army for appellant?
Many of the members expressed reservations,
upon which counsel argued that they held inelastic attitudes on sentencing.
In United States v. Reynolds, 23 MJ 292, 294 (CMA 1987), we stated
that "[n]either the Government nor the accused is entitled to a commitment
from the triers of fact about what [sentence they would ultimately impose]."
See also United States v. Small, 21 MJ 218, 219 (CMA
1986). Moreover, in United States v. Ohrt, 28 MJ 301 (CMA 1989),
and United States v. Horner, 22 MJ 294 (CMA 1986), we saw through
the commonly employed euphemisms for punitive discharge.
There is no issue before us, however, concerning
the propriety of the defense questions, as the military judge permitted
the inquiry. We are satisfied in any event that, viewing the voir dire
of each prospective member as a whole, the military judge was well within
his discretion in accepting those that he did. United States v. Dinatale,
44 MJ 325, 327 (1996).
The parties are "entitled to members who will
keep an open mind and decide the case based on evidence presented in court
and the law as announced by the military judge." Reynolds, 23 MJ
at 294. Members are not per se disqualified from serving
if they have "[d]istaste for particular offenses," United States v.
Daulton, 45 MJ 212, 217 (1996), "innocuous prior knowledge of the facts
of a case," United States v. Lake, 36 MJ 317, 324 (CMA 1993), or
a "professional relationship" with government witnesses, United States
v. Rome, 47 MJ 467, 469 (1998). None of the information extracted from
court members who sat in appellants case disqualified them automatically.
Furthermore, it is quite clear that the military
judge was basing his rulings on his personal assessment of each member.
Thus, in dismissing one member, MAJ H, over trial counsels protestations,
the military judge responded:



Major [H] is excused. While there might be
some validity to some of the points that youve [trial counsel] raised,
judging his demeanor about the inelastic attitude toward dismissal, he
did not convince me that he did not have an inelastic attitude. In other
words, I think his statements about dismissal I could not necessarily believe.
. . .



In contrast, accurately characterizing the gist
of MAJ Rs voir dire responses (one of the members not struck), the military
judge ruled:



At the beginning of his questioning, he [MAJ
R] said he could follow the judges instruction; he could consider zero
to maximum. And you have to take a look at whatever the evidence was. At
the end he said if the accused was found guilty of all of these offenses,
he probably should be removed from the Army. It would be difficult for
him to conjure up in his imagination the facts that would allow him to
keep the accused in the Army. But he certainly said it was within the possibility
of happening. What we want here are people who can consider the evidence,
and then decide an appropriate punishment. Obviously if the accused stands
convicted of all these offenses, it probably would be very difficult for
some of these court members to not vote for a dismissal. But the bottom
line is he said that he would not imply any automatic punishment. And I
dont think we can ask for anything more from this particular court member.
He said he could consider it. The weight to be given to it is a different
matter. He can consider it. He wouldnt automatically vote for a dismissal,
and the challenge is denied.



Recently, in United States v. Giles, 48
MJ 60, 61 (1998), we concluded that a military judge abused his discretion
when he declined to grant a challenge for cause of a member who persistently
indicated that he was "necessarily set on a bad-conduct discharge," even
though he agreed to consider all the evidence. Where, however, the totality
of the circumstances indicate, as here, that a member is genuinely open
to considering all mitigating and extenuating factors which are relevant
to a just sentence before arriving at a fixed conclusion, a military
judge has broad discretion to grant or deny challenges. United States
v. White, 36 MJ 284, 287 (CMA 1993), cert. denied, 510
U.S. 1090 (1994). Giving the military judge the deference due him on account
of his superior position to observe the demeanor of the court members,
we agree that he did not abuse his discretion in declining to strike the
remaining members.

IV
In the fourth issue, appellant challenges the
sufficiency of evidence of the offenses of which he stands convicted. Being
a court without fact-finding authority, Art. 67(c), UCMJ, 10 USC §
867(c), our standard of review is "whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
There is no question but that the Government's
evidence met the standard of legal sufficiency. Appellant himself, through
his testimony, established that, rather than going to his appointed place
of duty, he went "over a perimeter wall, an area that would attract the
least attention." He then proceeded downtown to the National Penitentiary,
where he was ultimately placed under control by a fellow Army officer who
was the embassy attaché. Numerous other witnesses testified to appellants
absence from his place of duty that night, the discovery that he was at
the penitentiary, and his recovery therefrom. In addition, numerous witnesses
testified to the boundaries imposed on him as a patient at the field hospital,
his transgression of those boundaries, his accosting LTC Bragg, and his
disobedience of and disrespect to LTC Bragg. The evidence of the offenses
of which appellant stands convicted is legally sufficient.

V
The final issue involves the defense theses
of "justification," "duress," and "necessity." As to justification, the
defense argued at trial that the military had failed in its duty to protect
human rights under the norms of international law by failing to secure
the National Penitentiary. Appellant himself tended to portray the U.S.
forces in general, and the multinational force command and staff in particular,
as a "renegade division," that was "indifferent" to human rights or life,
and "criminally negligent" because it failed to inspect immediately and
rectify the conditions at the National Penitentiary of Haiti.
In contrast, appellant viewed his own course
of conduct as justified or excused under general international law, the
Hague and Geneva Conventions, the United Nations and Nuremberg Charters,
and the Presidents "intent" as announced in a televised speech. Appellant
testified that he alone was following these dictates, and that he believed
it was necessary to enter the prison because he believed that the prisoners
faced torture, murder, and other human rights violations. Thus, the defense
wanted instructions to the effect that appellant should be exonerated if
the foregoing matters were established.
It is important to place these matters in context.
The United Nations Security Council authorized a multinational force to
"facilitate the departure from Haiti of the military leadership" and the
"prompt return of the legitimately elected" government. Pursuant to that
authorization, and utilizing the threat of imminent military invasion,
representatives of the United States reached an agreement with the de facto
government of Haiti in which the de facto military government was to
remain in place until a time well after the point at which appellant
took matters into his own hands.
Indeed, as of September 30, according to the
embassy attaché who recovered appellant from the penitentiary, the
de facto government was still in "control of the security apparatus," and
the multinational force was obliged to continue working with the "outlaws"
for a few more weeks. Appellant himself acknowledged that "cooperation"
with the de facto regime was required. He knew that the "troika" comprising
the de facto government was still in country, that "we were trying to get
them to leave the country with as minimal force as possible," and that
it was "the national policy" to work with them for the time being.3/
The difference between a military organization
and a mob is the role of command and control in channeling, directing,
and restraining human behavior. A modern army is made up of soldiers possessing
a variety of skills, and it operates corporately. Some soldiers carry rifles,
others use artillery, others drive tanks, and others fly helicopters. There
are mechanics, engineers, radio and computer operators, medics, military
police, cooks, clerks, ordinance and supply personnel, truck drivers, and
many other types of specialists. The only way the mission can be performed
is if all elements perform their functions in accordance with the guidance
and restrictions imposed by the command. Communication of intelligence
up and down the chain of command and between elements is vital. The overall
missions and objectives are established by the civilian governmental supervisory
structure and are implemented down the chain of command.
The harsh reality of command responsibility
is that military leaders constantly face difficult choices in meeting the
competing demands of operational goals and force protection, while at the
same time addressing a host of related issues concerning the environment,
innocent civilians, and collateral damage resulting from the use of force.
It is the commander, not the subordinate, who must assess these competing
concerns and develop command priorities. Given the destructive weaponry
that our nation entrusts to our military leaders, there is no other way
to control and direct the awesome power that is vested in the armed forces.
The decision to place primary emphasis on force
protection at the outset of the operation is the type of decision that
is within the responsibility of the commander. Every officer and enlisted
person under that command has a duty to perform in support of the commanders
priorities, and is guided in that duty by orders that both direct and restrict
that servicemembers scope of action. Whether in the chaos of large-scale
combat or in the delicate conduct of peacekeeping and peace enforcement,
a servicemember must obey a commanders decision as to the priority given
to force protection, as opposed to protection of the civilian population.
The undisputed record demonstrates that appellants
role in the mission at the time was force protection, and that he knew
it. He was a company grade staff officer assigned to the counterintelligence
section at the multinational force headquarters.4/
His job was to analyze information regarding threats to the joint task
force and to pass it up through command channels, where operations were
planned and directed. Neither appellant nor anyone within his section was
involved in intelligence collection, and they had no operational authority
whatever. Other elements of the multinational force were involved in spreading
out across Haiti projecting power, suppressing Haitian-on-Haitian violence,
and facilitating the governmental transfer. As always, force protection
was a critical component of the overall operation.5/
The record demonstrates, moreover, that at
the time of the charged offenses, the situation on the ground was dynamic.
To appellants knowledge, there had already been a firefight on September
24 at a location removed from Port-au-Prince, and there was credible evidence
of threats against the multinational force by various groups and individuals.6/
These hostile groups and individuals apparently believed that American
public and political support for the operation was thin, and that the infliction
of even a small number of casualties on U.S. forces might provoke enough
dissonance at home to cause the operation to be aborted.7/
These threats included potential grenade, mortar, and machine gun attacks
on Americans, and they were taken very seriously by the task force command.8/
In this connection, identifying weapons caches was also a critical part
of the counterintelligence mission.
Further, the counterintelligence function supported
the mission of safely restoring the legitimate Haitian government. The
hand grenade tossed into the crowd commemorating the ouster of President
Aristide and celebrating his imminent return -- in close proximity to American
forces on the day before appellants excursion -- underscored the need
to detect and stop the bad actors. Larger rallies were expected the next
day -- the day appellant commenced the charged conduct -- as appellant
himself acknowledged.
He also acknowledged that, as a result of the
grenade attack, the operational tempo "more than picked up.  I think
it changed the focus of the entire operation." When asked if the operational
tempo was "fast paced and hectic" at the time, he replied, "Thats obvious."
At the same time, the American-led force was
in the midst of trying to contain and dissipate a class-based civil war.
Various thug elements loyal to the de facto government roamed the streets
at night seeking out their victims, and oppressed slum-dwellers swarmed
the upper class neighborhoods, the police, and shops by day.9/
As might be expected in a multinational operation
sanctioned by the United Nations, the American-led force was not some kind
of government unto itself, with power to arrogate whatever role it wanted.
Indeed, regarding prisons, according to the embassy attaché,



the overall prison issue was an issue that
was put before the whole inter-agency process in the U.S. Government. The
primary responsibility fell to USAID [U.S. Agency for International Development]
and the Department of Justice to help the Haitians move ahead in terms
of improving prison conditions.



In addition, the attaché explained, a group
of international police monitors was established as part of the multinational
force "to work with the interim public security force -- the Haitian security
forces -- to monitor their -- their activities and help stand up an interim
police force." The security forces were the ones who were guarding the
prisoners.10/
As it happens, the commander of the multinational
forces military police contingent in the Port-au-Prince area, Colonel
(COL) Michael L. Sullivan, also visited the National Penitentiary on October
1, 1994, at about 9:00 a.m., 8 to 10 hours after appellant was removed
from the facility. Testifying as a defense witness, COL Sullivan stated
that he had not heard about appellants visit at the time; he was there
on business of his own. As the multinational forces had begun taking prisoners,
COL Sullivan was looking for appropriate places to house them.
Arriving without notice, he was received cordially
and was, upon his request, immediately given a complete tour of the facility.
He described the building as



a large structure that was in total disrepair.
Paint--what the areas that could be called painted as in many of the other
places on Port-au-Prince, there was little evidence of any care of the
building, little evidence of any care of the structure. It was filthy.
Conditions inside the prison were terrible.

* * *
If youre comparing it with something in the
United States, you really cant. If youre comparing it with other third
[world] countries, it was probably at the low end. If youre comparing
it with other facilities in Port-au-Prince, its probably below average,
but not by much.



COL Sullivan compared the prisoners with "the
people outside the prison," noting that they "didnt look much different
. . . . The whole country is poor," he observed, adding that, "[t]he whole
country is in horrible condition, which is why we went in the first place."
This latter observation was echoed by many other witnesses.11/
As he toured the facility, COL Sullivan saw
"no signs of physical torture or abuse," albeit "there were a group of
men in the infirmary that looked very ill." Had he "seen conditions . .
. that were immediately life-threatening," the Colonel testified, he "would
have taken action, as we had done on the streets of Port-au-Prince." He
did not, however, see immediate, life-threatening conditions.
COL Sullivan queried the prison officials about
their budget and learned that "[t]here was no money, no resources put into
those government -- government facilities," which was consistent with what
he "experience[d] in the police stations." As a result of his visit to
the prison, COL Sullivan submitted that very day a report to the joint
task force commander, MG Meade, recommending that "the United Nations or
some -- some relief organization be directed to visit the prison and provide
some relief for the conditions." COL Sullivan decided not to house his
prisoners there.
Appellants description of the penitentiary
is qualitatively similar to COL Sullivans. Like COL Sullivan, appellant
was received "courteous[ly]." Appellant, however, arrived in the early
evening, about 7:00-7:30 p.m., when it was already starting to get dark.
He was not able to tour the entire prison, and only saw a fraction of the
prisoners. He described several crowded cells of what he deduced to be
"military prisoners" because "they appeared in very good shape. . . . [T]hey
seemed almost to have athletic physiques." Those in the "infirmary," however,
"seemed very emaciated, very skeletal," and there were "a number of amputees."
Appellant was surprised that "[i]t seemed very
open at night for a prison. They seemed to keep the door open." Three or
four women, who appellant guessed were maids, "came in and out of the prison."
"They were washing clothes. Theres a fountain there," appellant testified.
As appellant stood in the darkened courtyard of the prison for "about 3
hours," he saw no one in the prison towers, and he "could not see how this
facility could keep anyone in if they got out of a cell, because there
were steps going up the walls . . . ." 12/
Like COL Sullivan, appellant reported no torture or physical abuse, and
none of the prisoners complained to him.
Before analyzing the legal doctrines pertaining
to appellants conduct, it is necessary to review what the record reflects
he actually knew of the current situation in the National Penitentiary.
Appellant testified that, while still at Fort
Drum, as plans were being made for the operation, he concluded that "simple
common sense would tell you that a prison would be the -- the key location
to be concerned about [for Haitian-on-Haitian violence] on entry and a
change of government on entry of a foreign force into a country." In Haiti,
"a common sense, logical conclusion" nourished his belief that people were
"going to die" at the National Penitentiary. In his trial testimony, he
cited repeatedly, but never quantified, "open source and other reports"
on "Haitian-on-Haitian violence in the prisons." He also repeatedly invoked
"history."13/
He maintained that he "was aware that . . . [the National Penitentiary]
has one of the worst conditions in the world," that he had "foundational
knowledge that there was [sic] human rights violations," and that he "had
no, not one bit of information that it was anything otherwise." He conceded,
however, that he "had no spot -- counterintelligence spot reports on the
Haitian Penitentiary."
On the evening of 27-28 September, a report
about a jail in Les Cayes (a city some distance from Port-au-Prince) was
widely circulated following its discovery by U.S. military personnel inspecting
a co-located police station for weapons. The condition of that facility
and its prisoners was reportedly "horrendous" and "shocking." Appellant
projected that, "if those same conditions exist in Port-au-Prince,"
the multinational force "could be liable under international law . . .
." (Emphasis added.)
On the 29th of September, appellant received
a classified report on prisons in Haiti, one that he had requested while
still at Fort Drum in late August. Essentially, the report lists the number
of people known or believed to be incarcerated at various facilities around
the country on various specified dates. In addition, a narrative section
provides very general and historical background information pertaining
to the overall system. Appellants take on the report was that, although
it was a "general report," it "corroborated the information . . .[he] received
from . . . [his] counterintelligence sources," and it gave him "every reason
to expect the conditions of Les Cayes in Port-au-Prince." No other evidence
of the conditions at the National Penitentiary, or appellants foreknowledge
of them, was adduced at trial.
One observation is essential at this point.
Whatever information, of whatever reliability, appellant may have had about
the inner-workings of the Haitian prison and politico-justice systems over
the last 45 years, up to and including the oppressive reign immediately
preceding the U.N.-authorized intervention, he could not point to any information
about the current conditions, operations, or practices at the penitentiary.
Yet at trial, appellant maintained that the
charged conduct concerning his visit to the prison was based on the rules
of engagement in effect during the operation in Haiti. In particular, he
cited rule 7, which states, in pertinent part:



PERSONS OBSERVED COMMITTING SERIOUS
CRIMINAL ACTS WILL BE DETAINED USING MINIMAL FORCE NECESSARY . . . .



When appellant slipped over the wall of the multinational
force compound in the late afternoon of September 30, 1994, it is clear
that he had observed or been apprised of no criminal acts at the National
Penitentiary.14/

Justification
Under the formulation of the Manual
for Courts-Martial, "justification" is denominated a defense for a "death,
injury, or other act caused or done in the proper performance of a legal
duty." RCM 916(c); cf. 1 Wayne R. LaFave and Austin W. Scott, Jr.,
SUBSTANTIVE CRIMINAL LAW
641-43 (1986).15/
Appellant cites us to no legal authority --
international or domestic, military or civil -- that suggests he had a
"duty" to abandon his post in counterintelligence and strike out on his
own to "inspect" the penitentiary. Neither does he suggest any provision
of any treaty, charter, or resolution as authority for the proposition.
Further, he does not here claim that he received personal orders via television
from the Commander-in-Chief. Moreover, he cites no authority for the proposition
that his observations at the penitentiary supplied him with a duty that
permitted him to be disrespectful to LTC Bragg, to disobey his orders to
be at ease, or to depart from the field hospital where he was being detained.
In this circumstance, we conclude that the military judge did not err in
declining to provide a justification instruction.

Duress and Necessity
Duress and necessity are very closely related
defenses. 1 LaFave and Scott, supra at 631; Rollin M. Perkins and
Ronald N. Boyce, CRIMINAL LAW
1065 (3d ed. 1982). Classically, duress was seen as a defense to crime
if the defendant was compelled or coerced to commit the crime by some human
agency, under a threat of serious imminent harm to the defendant or others.
Thus: Assist in this bank robbery or I will kill you (or another person).
Being charged with bank robbery, the defendant interposes duress as a defense.
See LaFave and Scott, supra at 614-27; Perkins and Boyce,
supra at 1059-65; see also United States v. Vasquez,
48 MJ 426, 429-30 (1998).
For the defense of duress to apply, the crime
committed must have been of lesser magnitude than the harm threatened,
and "the duress must [have] consist[ed] of threatening conduct which produce[d]
in the defendant (1) a reasonable fear of (2) immediate (or imminent)
(3) death or serious bodily harm." LaFave and Scott, supra at 615,
618 (emphasis added, footnote omitted). An "obviously safe avenue of escape
before committing the prohibited act" nullifies the defense. Perkins and
Boyce, supra at 1060.
The defense of necessity, in contrast, was
traditionally seen as a "choice of evils" defense. Here the "pressure of
circumstances"16/
was not brought by human agency, but by the situation itself. LaFave and
Scott, supra at 629. Thus: It was necessary for me to trespass across
the private property in order to rescue the person who was drowning in
the adjacent lake. Charged with trespass, the defendant pleads necessity.
Id. at 627-31. The defendants belief that his actions were necessary
must have been reasonable, and there must have been no alternative that
would have caused lesser harm. Id. at 635, 638; United States
v. Bailey, 444 U.S. 394, 410 (1980). Put another way, "the issue is
whether the duress or necessity was such that a reasonable person, under
like circumstances, would have been impelled to do what was done by the
defendant." Perkins and Boyce, supra at 1069.
As LaFave and Scott note, however, "modern
cases have tended to blur the distinction between duress and necessity."
Id. at 628, quoting United States v. Bailey, supra.
The Manual formulates a defense of "coercion
or duress" as follows:


It is a defense to any offense except killing
an innocent person that the accuseds participation in the offense was
caused by a reasonable apprehension that the accused or another innocent
person would be immediately killed or would immediately suffer serious
bodily injury if the accused did not commit the act. . . . If the accused
has any reasonable opportunity to avoid committing the act without subjecting
the accused or another innocent person to the harm threatened, this defense
shall not apply.


RCM 916(h)(emphasis added).
There is no Manual provision specifically denominated
"necessity," nor is there a standard military instruction under that heading.
According to one commentator, necessity has never been directly recognized
in the military, possibly owning to a concern that "private moral codes
will be substituted for legislative determinations, resulting in a necessity
exception that swallows the rule of law."17/
Be that as it may, the military judge
decided to provide what was functionally a necessity instruction. The judge
recognized that the standard duress instruction did not fit the circumstances,
in that there was no coercion by human agency in the classic sense. That
is, no one put a gun to appellants head and said, "Inspect the prisons
or somebody dies." So the judge tried to "blend" the duress instruction
to fit the circumstances, including the elements of necessity.
Thus, he instructed the members:



Now Id like to talk to you about
what were going to call "duress." Its a defense. And the evidence has
raised the issue of duress in relation to all of the charges that have
been charged against Captain Rockwood.
Duress is a complete defense to each offense
to which it applies, which is all of them. In evaluating this defense,
keep in mind that you must apply the defense to each offense separately.
To be a defense, Captain Rockwoods participation in the offense must have
been caused by a well-grounded apprehension that a prisoner in, or prisoners
in, the National Penitentiary would immediately die or would immediately
suffer serious bodily harm if Captain Rockwood did not commit the charged
act.
The amount of compulsion, coercion or force
must have been sufficient to have caused an officer who was faced with
the same situation and who was of normal strength and courage, to act.
The fear which caused Captain Rockwood to commit the offense must have
been fear of death or serious bodily injury
and not simply fear of injury to reputation or property, or to bodily injury
less severe than serious bodily harm. The threat and resulting fear must
have continued throughout the commission of the offense.



(Emphasis added.) Specifically absent from this
instruction was any limitation that the coercion or reasonable apprehension
be caused by human agency.
At trial, appellant objected to the officer
"of normal strength and courage" phrase. On appeal, he contends he was
entitled to a duress instruction sans this language. We agree with
the military judge that classic duress was not raised, and thus this point
is moot. Even if duress were raised, the complained-of language merely
expresses an objective standard, which is unquestionably a component of
both duress and necessity. LaFave and Scott, supra at 618-19, 635;
Perkins and Boyce, supra at 1061, 1069; RCM 916(h).
Regarding necessity, appellant contends that
the military judge erred by failing to give such an instruction. In our
view, a necessity instruction was in fact given, and the military judge
formulated the instruction in a manner that comported well with general
civilian criminal law. The inclusion of elements of objectivity and compulsion
of circumstance in the instruction was not a flaw. See LaFave and
Scott, supra at 629, 635, 638; Perkins and Boyce, supra at
1069; Bailey, supra at 410.
There may indeed be unusual situations in which
an assigned military duty is so mundane, and the threat of death or grievous
bodily harm to civilians is so clearly defined and immediate, that consideration
might be given to a duress or necessity defense. However, in view of the
form of the instruction here incorporating the concept of necessity, that
question is moot.

* * *
When the American military police colonel with
nearly 30 years of service stands in the bowels of the Haitian National
Penitentiary and pronounces it "filthy . . . terrible," we have no occasion
to disbelieve him. Indeed, we assume that prison conditions in much of
the world would be shocking to our sensibilities. This was not, however,
a general inquest into Haitian prison conditions; nor was it a broad-based
investigation into the overall conduct of Operation Uphold Democracy. As
to those matters, we make no attempt to pass judgment.
Rather, this was an inquiry into appellants
conduct, and in the course of it, questions were raised as to whether his
actions were justified or excused under the circumstances then prevailing.
Appellant was assigned important intelligence responsibilities, and the
record supports the conclusion that he did not possess information demonstrating
a clearly defined and immediate threat of death or grievous bodily harm
to innocent civilians. Under the circumstances, the court members rejection
of appellants defenses was rational. Cf. Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Turner, 25 MJ 324 (CMA
1987).
The decision of the United States Army Court
of Criminal Appeals is affirmed.
FOOTNOTES:
1/ As framed by appellant,
the granted issues are:


I
WHETHER CAPTAIN ROCKWOOD WAS
DENIED A FAIR AND IMPARTIAL TRIAL AS A RESULT OF INTERRELATED UNLAWFUL
COMMAND INFLUENCE AND CONFLICTS OF INTEREST AFFECTING VIRTUALLY THE ENTIRE
COMMAND, INCLUDING THE COURT AND PANEL MEMBERS AND PROSECUTION WITNESSES.

II
WHETHER THE MILITARY JUDGE ABUSED
HIS DISCRETION BY DENYING PRODUCTION OF MAJOR GENERAL MEADE, BRIGADIER
GENERAL HILL, OTHER WITNESS TESTIMONY AND EVIDENCE RELEVANT AND NECESSARY
TO ESTABLISH CAPTAIN ROCKWOODS DEFENSES.

III
WHETHER INDIVIDUAL MEMBERS OF
THE MILITARY COURT WHO WERE DISQUALIFIED FROM SERVICE ON THE COURT WERE
ERRONEOUSLY PERMITTED TO SERVE DESPITE BEING CHALLENGED FOR CAUSE.

IV
WHETHER THE EVIDENCE WAS LEGALLY
INSUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT CAPTAIN ROCKWOOD
WAS GUILTY OF CHARGES I, II, AND III.

V
WHETHER THE MILITARY JUDGE ERRED
BY FAILING TO INSTRUCT THE PANEL ON THE DEFENSES OF JUSTIFICATION AND NECESSITY
AND BY GIVING A DURESS INSTRUCTION THAT WAS INCORRECT AND CONFUSING.

The appeal was heard on February
26, 1999, at the College of William and Mary School of Law, Williamsburg,
Virginia, as a part of the Courts "Project Outreach" program. See
34 MJ 194, 195 n.1 (CMA 1992). Under the supervision of Professor Fredric
Lederer and with the consent of appellant, law student amici filed a brief
in the case and orally argued several issues.
2/ Appellant
arrived in Haiti several days after the initial wave, on September 23.
He began work on September 24 and "inspected" the penitentiary on September
30. He had previously managed just one trip into town.
3/ One
member of the troika outranked MG Meade, the multinational force commander.
Therefore, as appellant volunteered: General Shelton "was being kept in
the area because we did not -- we wanted to show respect to Lieutenant
General Cedras, and didnt want to make him lower himself to address [Major]
General Meade who was one rank lower."
4/ Though
appellant had approximately 15 years of military experience at the time
of his court-martial, in April and May 1995, much of his time had been
spent as an enlisted medic and health counselor. Haiti was his first "large
operation" deployment.
5/ One
of appellants subordinate noncommissioned officers, Sergeant First Class
David L. Hooper, made this point when, explaining how appellant was becoming
obsessed with matters outside his function, he testified:

As a matter of fact, what --
after the second day of reviewing or publishing the reports that Captain
Rockwood had done -- done the final edit on, I realized he was becoming
emotionally involved. His focus was now more and more on, you know, that
Multinational Forces were not doing their job, which is not our assessment.
Thats not our job to publish in our intel summary that were not doing
our job. I noticed more and more of this -- weve got to do more for humanitarian
rights. I understood what he was saying, but again, that particular publication
is not the venue for that particular information. So what I did was I sat
down one day and I said, sir, I know youre a very strong and emotional,
professional officer, you know, and Im your NCOIC, and you know, I support
your right to feel what you feel, to think what you think, but I go, sir,
weve got to recall what our actions are and what our actions can affect
out there as part of the total operation. Maybe you need to think about,
you know, if necessary Ill help you, you know, re-review and well get
reoriented to a more -- a more clearly intelligence product rather than
an inflammatory product. (Emphasis added.)

6/ Appellant
regarded these "threats to U.S. forces . . . [as] insignificant [compared]
to the threats that faced the Haitian population that we were there to
protect." Shortly after appellants evacuation from Haiti, an American
soldier was shot and critically injured, and still later another American
servicemember was shot and killed.
7/ Appellants
testimony indicates that he was well aware of this concern:



[M]atter of fact, as I was
leaving the hanger at Griffiss Air Force Base to go on the 747 to go to
Port-au-Prince, there was a very heated argument between, I think the leader
of the Senate and the leader of the minority about whether or not Haitians
-- Haitian democracy was worth one American life. So I was aware that there
was -- this was a very highly charged political issue in the United States,
whether or not democracy was worth one American life.



8/ The record
reflects that appellant was not with the 10th Mountain Division in Somalia
the year before, when a deceptively friendly initial reception quickly
turned hostile and deadly.
9/ At
trial, appellant repeatedly criticized what he characterized as the commands
excessive emphasis on force protection and its indifference to Haitian
suffering. When asked on cross-examination if the command was being "indifferent"
to Haitian violence "when it tried to prevent violence during the demonstrations
on the 29th and 30th [of September]," appellant retorted:

You mean along the approaches
to Petionville? The massive use of deadly force against pro-Aristide demonstrations,
that they approached the residences of the elite in Petionville? Is that
what youre addressing?

10/ Appellant
did know that, "under doctrine," the Civil Military Affairs Center was
"required to monitor the Haitian government infrastructure and that would
include the prisons that were under the control of the Haitian military
police . . . ." He was not aware that other agencies and institutions beyond
the military had roles in assisting in justice and prison matters. Ultimately,
it appears, the armed forces component of the multinational force did a
great deal of the heavy lifting in cleaning up the prisons. That does not
mean, however, that the military command had the authority to take over
functions of the de facto government on whatever timetable and to whatever
degree it chose.
11/ One
witness described "the human misery everywhere in Haiti. . . . One young
boy having to urinate on his hands to clean them" because "there was no
running water." According to another witness: "The conditions in Haiti
were horrendous. I mean, they were absolutely horrendous. The kids, malnutrition,
they were bad. I mean, they were -- I have never seen anything that bad
in my life. They were extremely bad. I mean, I remember vividly kids, parents,
people, eating out of a garbage dump, digging through garbage. A particular
stream that ran -- I went by -- you know, they were urinating in that,
bathing in it. I remember that vividly. That will always stay with me."
12/ Indeed
there was evidence that about 2 weeks later, on October 13, 117 people
escaped from the National Penitentiary, and that was not an isolated incident.
13/ At
one point, he stated, "[A]s [a] student of history Ive never heard of
an oppressive or dictatorial regime that doesnt have political prisoners.
I dont know if one has existed in history. If Haiti was that condition
[sic], it would be the first in history, I think." At another point, he
stated, "And I had history from the last 45 years. I know it doesnt have
Secret on top and the bottom, but, believe it or not, some things are
valid without that caveat."
14/ Or
at any of the other four facilities in the Port-au-Prince area he wanted
inspected.
15/ "Justification"
was not traditionally a separate defense in Anglo-American jurisprudence,
but rather denoted a category or class of defenses that included "necessity,"
"self-defense," and "public duty." See Art. 3, ALI MODEL
PENAL CODE,
reprinted in ALI MODEL
PENAL CODE
AND COMMENTARIES
(Part I) 1-5 (1985); Chapter 5, 1 Wayne R. LaFave and Austin W. Scott,
Jr., SUBSTANTIVE CRIMINAL
LAW (1986). Where the defense
of "duress" applies, the actor is not considered justified for the conduct,
but excused. Rollin M. Perkins and Ronald N. Boyce, CRIMINAL
LAW 1059 (3d ed. 1982). See
also United States v. Bailey, 444 U.S. 394, 409-10 (1980).
16/ Perkins
and Boyce, supra at 1065, call necessity: "NECESSITY (DURESS OF
CIRCUMSTANCES)."
17/ Eugene
R. Milhizer, Necessity and the Military Justice System: A Proposed Special
Defense, 121 MIL. L. REV.
95, 96-97 (1988). To the extent Milhizer is referring to situations not
involving the flouting of military authority, he surely goes too far. There
is, for example, no reason why the drowning situation would not provide
a defense. However, "It was necessary for me to leave my post or disobey
your lawful order in order to perform some more important function" could
be another matter, one which the instant facts do not require us to resolve.
See United States v. Olinger, 50 MJ 365, 366-67 (1999).
 
 
GIERKE, Judge (concurring):
I agree completely with the majority opinion.
I write separately to set out in greater detail my reasons for upholding
the military judges ruling on the challenge of MAJ R.
In my view, the military judge should not have
allowed the defense to ask questions on voir dire that asked for a sentencing
commitment from court members based solely on the nature of the offenses.
See United States v. McLaren, 38 MJ 112, 118 (CMA 1993) (recognizing
that responses to "artful" questions and inaccurate responses do not require
that a challenge for cause be granted). Thus, it is not surprising that
the court members responses required clarification.
This Court has long recognized that "[a]n unfavorable
inclination toward an offense is not automatically disqualifying." United
States v. Giles, 48 MJ 60, 63 (1998), quoting United States v. Bannwarth,
36 MJ 265, 268 (CMA 1993), and citing United States v. Reynolds,
23 MJ 292, 294 (CMA 1987), and United States v. Cosgrove, 1 MJ 199
(CMA 1975). "[T]he test is whether the members attitude is of such a nature
that he will not yield to the evidence presented and the judges instructions."
McLaren, supra, quoting United States v. McGowan,
7 MJ 205, 206 (CMA 1979).
In this case, the defense voir dire included
the following:


Q. Shall we start again?
A. [MAJ R] Well, your question is, if he was
found guilty on all charges should he stay in the Army?
Q. Yeah -- I mean, you read these five specifications,
or whatever they are called -- pretty lengthy stuff -- now, knowing that
and he is convicted of them, do you want somebody in the Army like that?
Do you think there is a place in the Army for people who do those things?
A. Well, if he is found guilty, I would say
no.
Q. So, in your opinion he shouldnt be in the
Army?
A. If he is guilty -- if he is found guilty.
Q. And then, if he -- youd consider everything,
but basically, your opinion, if he is convicted, he ought to be removed
from the Army?
A. Thats correct.


The military judge recognized what the defense
was doing. He first explained that the court-martial was "not an administrative
elimination board." He explained that "a dismissal for an officer is like
a dishonorable discharge for an enlisted person," and that "its a very
severe punishment, you could never erase the effects of it." He discovered
upon questioning MAJ R that he did not understand that the adjudication
of guilt was separate from the determination of a sentence. The military
judge then asked the following clarifying questions:


Q. Well -- but, there is guilty or not guilty,
and then there is mitigating and extenuating circumstances. What Im saying
is, is that based upon the mere fact that he is guilty, you would feel
compelled to vote for a dismissal, regardless of any of the other evidence?
A. Well, no, I guess I need -- when you said
that there is mitigating or other -- I guess, I would need to hear that
first, that would come out in the trial.
Q. So, you could envision that there might
be some mitigating or extenuating circumstances that wouldnt warrant a
dismissal -- a punitive separation?
A. Can I envision any? No, but I might hear
some.
Q. All right. Could you consider everything
from zero punishment to the maximum, whatever that is?
A. Yes, sir, Ive done that before when Ive
given Article 15s and other nonjudicial -- but, I guess, if youre asking
at face value, without hearing any of the other things -- could I weigh
it between the two? I would weigh it.
Q. But it would be hard for you to envision
any extenuating or mitigating circumstances so extreme as to allow you
to keep the accused in the service?
A. Thats correct.


Trial counsel then asked the following questions:


Q. Major [R], if we could just touch on this
issue just a little bit more, with respect to any punishment, do you feel
that there is any automatic punishment that you must give to the accused,
if you found him guilty of anything?
A. No.
Q. Do you believe that you would be able to
consider evidence in the sentencing phase of the trial, that would allow
you to determine whether or not a dismissal was appropriate? For example,
do you believe there might be evidence, although you might not be able
to imagine in your mind right now ----
A. Okay, I understand what youre -- yeah,
I think that if I heard something that Im not aware of right now, that,
yes, I could take that into consideration.
Q. You just cant think of anything because
you dont know the facts of the case?
A. At the -- thats correct.
Q. Okay. So, if you heard it -- you would wait
to determine whether or not to assess a dismissal or any other type of
punishment?
A. Thats correct.
Q. Until youve heard the evidence?
A. [Affirmative response]
Q. So, do I understand you to say, you dont
feel compelled to do that?
A. No, I wouldnt be compelled to do that.
Q. Just because of the charges?
A. Thats correct.


We recognize that a military judge has a "superior
position in evaluating the demeanor of court members." Thus, we grant a
military judge "great deference" and we "will not reverse a ruling on a
challenge for cause absent a clear abuse of discretion." United States
v. McClaren, supra. I agree with the majority that the military
judge did not abuse his discretion.
Finally, I agree with the majority that this
case is distinguishable for our recent decision in United States v.
Giles, supra. In Giles, the court member in question
was adamant. He agreed to listen to the evidence before deciding on a sentence,
but said that he was "necessarily set on a bad-conduct discharge." 48 MJ
at 61. In this case, once the military judge cleared up the confusion,
the member unqualifiedly stated that he would reserve judgment on whether
to vote for a dismissal until he heard all the evidence.
 
 
SULLIVAN, Judge (concurring in part and in
the result):
I concur in the result on parts I and II of
the majority opinion. In my view, Major General Meade should have been
produced for the limited purpose of establishing whether he referred charges
against Captain Rockwood for personal rather than official reasons. See
generally Art. 46, Uniform Code of Military Justice, 10 USC §
846, and RCM 703(b)(1) Manual for Courts-Martial, United States (1994 ed.).
Nevertheless, I would not reverse appellants conviction.
Before Captain Rockwood went to the prison
in Haiti, he lodged an official Inspector Generals (IG) complaint against
numerous members of Major General Meades staff for not protecting political
prisoners. Once Major General Meades command was charged by Captain Rockwood
with misconduct (a highly unusual event), a reasonable person might conclude
that the General may have had a personal interest in punishing Captain
Rockwood, i.e., retaliation for embarrassing his command. Since
Rockwood had been charged for misconduct after he had filed the IG complaint,
Rockwood should have been able to at least question Major General Meade
about any personal motives on his part in referring these criminal charges
to court-martial. See Arts. 1(9) and 22(b), UCMJ, 10 USC §§
801(9) and 822(b). As Justice Frankfurter said in Caritativo v. California,
357 U.S. 549, 558 (1958):



Audi alteram partem ¾
hear the other side! ¾
a demand made insistently through the centuries, is now a command, spoken
with the voice of the Due Process Clause of the Fourteenth Amendment, .
. . whenever any individual, however lowly and unfortunate, asserts a legal
claim.



However, notwithstanding the error made by the
trial judge in not ordering a possible accuser under Article 22(a) to be
questioned about his motives in referring charges against Captain Rockwood,
I would hold this error harmless. See United States v. Jeter,
35 MJ 442, 446-47 (CMA 1992) (holding defect in referral by accuser not
jurisdictional). In my view, any reasonable Division commander,
given the actions of appellant as reported to Major General Meade, would
have brought these charges against him. See Whren v. United States,
517 U.S. 806 (1996) (if probable cause existed to stop a person for a traffic
violation, actual motivation of officer for stop is irrelevant).
Accordingly, I join the majority in affirming
this case.

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