                       UNITED STATES, Appellee

                                    v.

                  Justin M. LEWIS, Lance Corporal
                    U.S. Marine Corps, Appellant

                              No. 05-0551

                       Crim. App. No. 200200089

       United States Court of Appeals for the Armed Forces

                          Argued May 2, 2006

                        Decided August 9, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and CRAWFORD and BAKER, JJ., joined. EFFRON, J.,
filed a separate concurring opinion.

                                 Counsel

For Appellant:   Lieutenant Brian L. Mizer, JAGC, USNR (argued).

For Appellee: Captain Roger E. Mattioli, USMC (argued);
Lieutenant Guillermo J. Rojas, JAGC, USNR, and Commander C. N.
Purnell, JAGC, USN (on brief).




       This opinion is subject to revision before final publication.
United States v. Lewis, No. 05-0551/MC

       Judge ERDMANN delivered the opinion of the court.

       Lance Corporal Justin M. Lewis was charged with numerous

drug offenses.    He entered guilty pleas to attempted

distribution of ecstasy, conspiracy to use and distribute

controlled substances, use of ecstasy, use of ketamine, use of

LSD, use of methamphetamine, possession of ketamine, possession

of ecstasy with the intent to distribute, and distribution of

ecstasy in violation of Articles 80, 81 and 112a, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 880, 881, 912a (2000).

Lewis was convicted in accordance with his pleas and sentenced

to a dishonorable discharge, confinement for five years,

forfeiture of all pay and allowances, and reduction to E-1.

       The convening authority approved the sentence but suspended

all confinement in excess of forty-two months pursuant to a

pretrial agreement.    The United States Navy-Marine Corps Court

of Criminal Appeals affirmed the findings and sentence.    United

States v. Lewis, 61 M.J. 512, 521 (N-M. Ct. Crim. App. 2005).

We granted review of three issues, which included a challenge to

the Court of Criminal Appeals’ determination that the unlawful

command influence was harmless beyond a reasonable doubt, and

alleged violations of Lewis’s right to a speedy trial and speedy

appellate review.1



1
    On January 19, 2006, we granted review of the following issues:



                                  2
United States v. Lewis, No. 05-0551/MC

     Unlawful command influence is “‘the mortal enemy of

military justice.’”   United States v. Gore, 60 M.J. 178, 178

(C.A.A.F. 2004) (quoting United States v. Thomas, 22 M.J. 388,

393 (C.M.A. 1986)).   Where it is found to exist, judicial

authorities must take those steps necessary to preserve both the

actual and apparent fairness of the criminal proceeding.     United

States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998); United

States v. Sullivan, 26 M.J. 442, 444 (C.A.A.F. 1988).    The

“‘appearance of unlawful command influence is as devastating to

the military justice system as the actual manipulation of any

given trial.’”   United States v. Simpson, 58 M.J. 368, 374

(C.A.A.F. 2003) (quoting United States v. Stoneman, 57 M.J. 35,

42-43 (C.A.A.F. 2002)).


          I. WHETHER THE LOWER COURT ERRED WHEN IT
          HELD THAT THE IN-COURT ACCUSATIONS BY THE
          STAFF JUDGE ADVOCATE AND TRIAL COUNSEL THAT
          THE MILITARY JUDGE WAS INVOLVED IN A
          HOMOSEXUAL RELATIONSHIP WITH THE CIVILIAN
          DEFENSE COUNSEL AMOUNTED TO UNLAWFUL COMMAND
          INFLUENCE BUT WERE HARMLESS BEYOND A
          REASONABLE DOUBT.

          II. WHETHER THE GOVERNMENT DENIED APPELLANT
          HIS RIGHT TO A SPEEDY TRIAL UNDER THE UNITED
          STATES CONSTITUTION AND ARTICLE 10, UNIFORM
          CODE OF MILITARY JUSTICE (UCMJ), 10 U.S.C. §
          810.

          III. WHETHER APPELLANT WAS DENIED DUE
          PROCESS OF LAW WHERE HE SERVED HIS ENTIRE
          SENTENCE OF FORTY-TWO MONTHS CONFINEMENT
          BEFORE THE LOWER COURT REACHED A DECISION IN
          HIS CASE.



                                 3
United States v. Lewis, No. 05-0551/MC

     Lewis contends that outrageous conduct by the trial counsel

and staff judge advocate (SJA) placed an intolerable strain on

the public perception of fairness in his trial and the military

justice system, and that the proper remedy to cure this unlawful

command influence is dismissal of the charges.   We conclude that

under the unique circumstances of this case, no remedy short of

reversal of the findings and sentence and dismissal of the

charges and specifications with prejudice will ameliorate the

unlawful command influence present and restore the public

perception of fairness in the military justice system.

                               Facts

     The initial military judge detailed to this court-martial

was Major (MAJ) CW.   At the initial Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000), session held on November 7, 2002, MAJ CW

announced her qualifications as a military judge and offered the

parties the opportunity to voir dire or challenge her.   Both

parties declined and Lewis was arraigned.   The detailed military

defense counsel then announced that Lewis had retained a

civilian defense counsel, Ms. JS.    Ms. JS was a former Marine

judge advocate who had attained the rank of colonel.   Ms. JS

represented Lewis at all proceedings after the first Article

39(a), UCMJ, session.




62 M.J. 448 (C.A.A.F. 2006).

                                 4
United States v. Lewis, No. 05-0551/MC

     At an Article 39(a), UCMJ, session held on January 14,

2002, MAJ CW stated that trial counsel had requested a voir dire

of the military judge.   The voir dire covered a number of areas

including:   (1) companion cases to Lewis’s tried by MAJ CW as

military judge; (2) MAJ CW’s prior professional relationship

with the civilian defense counsel, Ms. JS; (3) the number of

cases presided over by MAJ CW at which Ms. JS appeared as

civilian defense counsel; and (4) the extent of any social

relationship between MAJ CW and Ms. JS in general, as well as

any personal contact between MAJ CW and Ms. JS since the Lewis

case had begun.

     Concerning personal contact with Ms. JS, MAJ CW said, “She

boards horses at the barn where I ride, as a hobby I ride on

Sundays there, and occasionally I see her at the barn.”   Based

upon the companion cases at which MAJ CW served as military

judge, the professional relationship MAJ CW had with Ms. JS and

because MAJ CW and Ms. JS had “at least interacted . . . in a

very limited social way at the barn but on no other occasion”,

trial counsel inquired whether the military judge believed there

was an “appearance of impartiality [sic].”   Major CW responded

that she did not believe there was “the appearance of

impropriety.”

     Trial counsel then asked MAJ CW about another case in which

she had been voir dired about whether she detailed herself to



                                 5
United States v. Lewis, No. 05-0551/MC

the case and her relationship with Ms. JS.   When asked if she

considered that voir dire inappropriate, MAJ CW responded in the

negative and added:

           Well, I find it interesting that I’m
           frequently voir dired on my acquaintance
           with Ms. [JS] when my other military judge
           counterparts are never voir dired on their
           acquaintance with her. She stood as their
           reviewing officer and working relationship
           with them, she’s been around the Marine
           Corps for over 30 years, so I do find that
           as interesting.

Summarizing the voir dire to that point and specifically

including “having limited social interaction at the barn only”,

trial counsel again asked if the military judge believed there

might be an “appearance of impartiality [sic].”   In response,

MAJ CW asked trial counsel if he was making a motion for

recusal.   The trial counsel said that he was not, but continued

his voir dire and inquired about yet another case in which MAJ

CW was questioned about electronic mail messages generated by

Ms. JS and her relationship with Ms. JS.    Noting that trial

counsel in that case had submitted a motion for recusal, trial

counsel asked MAJ CW if she “resented that inquiry or the

subsequent motion.”   Major CW responded:

           I resented the –- the –- Major [W] was
           assigned to that case by the SJA for the
           specific purpose of conducting a voir dire
           of the military judge and floating the
           recusal motion, and then he was taken off
           the case before I even deliberated and ruled
           on the motion. When I went to go and ask
           him further questions on the motion, he was


                                 6
United States v. Lewis, No. 05-0551/MC

          not available. He had left the building.
          So I found, overall, his conduct and the way
          that he asked the questions, and his conduct
          in leaving before the motion was even
          resolved –- I found that to be
          unprofessional, and, yes, I was offended by
          that process.

Asked further about her reaction to that voir dire and motion,

MAJ CW indicated that she “probably” told another major that she

felt she had been put through “an inquisition”, that she felt

she had been “attacked by the government”, and that she may have

indicated “it would take . . . a few days to get back on good

terms with the government.”

     Trial counsel’s voir dire continued.   The questions

concerned whether MAJ CW had detailed herself to Lewis’s case

after learning that Ms. JS would be the civilian defense

counsel, the extent and nature of any communications with Ms. JS

about the Lewis case, and whether MAJ CW had received copies of

electronic mail generated by Ms. JS dealing with matters

relating to an allegation of prosecutorial misconduct.   At this

point, trial counsel made a motion for recusal as follows:

          Ma’am, at this time taken all of the facts
          that have come to light during this inquiry,
          your previous involvement with the companion
          cases, having worked with Colonel [JS] in
          the past, having a social relationship
          limited to interactions at the barn, as well
          as the fact that defense counsel in the Neff
          case apparently received statements from the
          assistant civilian defense counsel
          expressing preference for you as military
          judge, also the fact that you expressed in
          the Scamahorn case displeasure with the way


                                7
United States v. Lewis, No. 05-0551/MC

           that you had been voir dired in the Curiel
           case; also the fact that civilian defense
           counsel in this case has made a habit of
           CC’ing you on electronic mail messages which
           contained disputed and contested substantial
           issues relating to suborning perjury,
           discovery issue, and making recommendations
           to you as to what would be an appropriate
           resolution for failure to comply with
           pretrial milestones: All of that taken
           together, ma’am, would you agree that
           creates an appearance of impartiality [sic]
           that a reasonable person might perceive with
           respect to this case, ma’am?

Emphasis added.   Asked if he had a written motion, trial counsel

responded, “If the issue becomes ripe, ma’am, the government

will have a written motion to reconsider.”   After determining

that the motion for recusal was based solely on her responses

during voir dire, MAJ CW stated that she did not “think the

record supports recusal of the military judge.   That’s my ruling

on the motion.”

     At this point trial counsel indicated that the Government

had a written motion for reconsideration.    The written motion

asserted three bases for recusal:    “the reasonable appearance of

impartiality [sic] by the military judge, actual bias by the

military judge, and personal knowledge of disputed evidentiary

facts.”   In general, the motion noted the prior professional

relationship between Ms. JS and MAJ CW, some cases in which MAJ

CW had docketed herself as military judge when Ms. JS was to

appear as civilian defense counsel, voir dire of MAJ CW in other

cases concerning her relationship with Ms. JS, Ms. JS’s practice


                                 8
United States v. Lewis, No. 05-0551/MC

of sending copies of electronic mail correspondence about

pending cases to MAJ CW, and the companion cases to Lewis’s case

over which MAJ CW had presided.

     Specifically, the motion stated:    “On 25 November 2001,

after already having presided over the arraignment in this case,

and being copied on numerous electronic mail messages by the

civilian defense counsel, the military judge and civilian

defense counsel were observed exiting a showing of the play

‘Dracula the Musical’ in LaJolla, California, by Colonel [RZ].”

The motion for reconsideration asserted that the appearance of

impropriety arose from a number of factors, including:

     First, [MAJ CW] and [Ms. JS] have a long
     professional history going back nearly a decade,
     in which [Ms. JS] was in her chain of command and
     assisted her in a remedial board. Second, [MAJ
     CW and Ms. JS] apparently interact socially as
     well, and it appears that they did so after [MAJ
     CW] had docketed herself to the instant case.

     Although the Government had obviously been aware as early

as January 11, 2002 of the fact that MAJ CW and Ms. JS had

attended the play, no questions were asked about that play

during the voir dire conducted on January 14, 2002.   The motion

for reconsideration was the first time the Government disclosed

that knowledge.   In further voir dire MAJ CW explained that when

trial counsel initially voir dired her, she did not remember

going to the play:   “[I]t slipped my mind that I had gone to

that play with [Ms. JS].”   Major CW denied the motion for



                                  9
United States v. Lewis, No. 05-0551/MC

reconsideration and noted that she and Ms. JS had “occasional

social interaction with no discussions of any military trials

pending before me.”

     In response to MAJ CW’s ruling, the trial counsel requested

a seventy-two-hour continuance to determine whether the

Government would appeal MAJ CW’s ruling under Article 62, UCMJ,

10 U.S.C. § 862 (2000).   See Rule for Courts-Martial (R.C.M.)

908(b)(1).   Trial counsel revealed that he had already

coordinated with the appellate government division and that they

were not yet certain whether the challenge to MAJ CW’s ruling

would be a Government appeal or a request for extraordinary

relief.   Major CW denied the request for a continuance.   Trial

counsel then asked for a three-hour continuance in order to seek

a stay of the trial proceedings.     That request was also denied.

     At an Article 39(a), UCMJ, session held on January 15,

2002, to litigate defense motions relating to pretrial

confinement and prosecutorial misconduct, the defense called the

SJA of the 1st Marine Division, Lieutenant Colonel (LTC) JC, as

a witness on the prosecutorial misconduct motion.    The SJA was

asked about his role in the earlier voir dire of MAJ CW.    The

SJA indicated that he had given “[g]eneral advice on voir dire”

to the trial counsel and had passed along some unspecified

things he had heard.




                                10
United States v. Lewis, No. 05-0551/MC

     In explaining some of the advice he had given to trial

counsel, the SJA stated that “there was some evidence out there

that, in fact, the defense lawyer had been on a date with the

judge while this case was pending.”   The SJA also revealed that

he had conversations about a Government appeal or extraordinary

writ with Colonel (COL) RF at the appellate government division

during which the SJA also conveyed the things he had heard.

Those conversations included “the apparent discrepancy on the

record when the military judge could not recall going on a date”

as well as the fact that Ms. JS did not correct MAJ CW when she

omitted any mention of the play during voir dire.   Asked if he

had discussed any particular evidence of bias on the part of MAJ

CW, the SJA said:

          A perfect example, and I relayed this to
          Colonel [RF], a perfect example is while
          [trial counsel was] addressing the court
          this morning, [Ms. JS] starts strolling
          around the courtroom, just walking around
          anywhere she wants to go. I’ve never seen
          that in any court of law in my life. The
          body movement being exhibited, in my
          opinion, which I told Colonel [RF] was that
          [Ms. JS] is running this court-martial, and
          [Col. RF] was very interested in that. If
          you really want to get tacky -- and I’ll
          tell you what else I told Colonel [RF].

     The SJA also discussed his “own personal bias observations”

with COL RF.   The SJA’s testimony was periodically marked by

direct exchanges with Ms. JS.   The personal nature of this

matter was reflected later when Ms. JS considered withdrawing



                                11
United States v. Lewis, No. 05-0551/MC

from the case.   However, having advised Lewis of her concerns,

Ms. JS remained on the case at Lewis’s insistence.2

     At a later Article 39(a), UCMJ, session MAJ CW indicated

she had been informed that a stay of proceedings had been

prepared by the appellate government division.   She announced

for the record that the contents of that stay request had been

read to her over the phone.   Based on the prior proceedings and

the information that had been read over the phone, MAJ CW again

reconsidered her denial of the recusal motion and concluded she

could continue to sit as military judge.

     The next day, January 17, 2002, after receiving evidence on

the prosecutorial misconduct and pretrial confinement motions

and following an overnight recess, MAJ CW indicated that she had

once again reconsidered her ruling on the recusal motion and had

decided to recuse herself at this point:

          I’m sure everyone in the courtroom can see
          that I’m emotional about this. I handled
          the government’s request to voir dire the
          military judge badly. I was thrown off
          balance by the motion. I didn’t expect it
          from [trial counsel]; it was not a timely
          request. No notice had been given. I
          should have demanded a good faith basis for
          his questions.

          I tried to answer the questions that were
          asked to my best recollection as they were

2
  When called to testify as a defense witness on the motions,
Lewis’s mother stated that her observations to this point caused
her to have little faith in fairness of the trial. She
characterized her observations of the SJA’s earlier testimony as
a “personal vendetta.”

                                12
United States v. Lewis, No. 05-0551/MC

          asked because I felt I had nothing to hide.
          I didn’t feel it necessary to expand on my
          answers because I believe that my
          association with [Ms. JS] is not improper.
          My poor memory for people and places now has
          people questioning my truthfulness on the
          record. In good faith I tried to apply the
          law regarding the disqualification of the
          military judge to this case. I believe that
          I could strike the balance between the
          interests of the government and getting a
          sentencing hearing free from any appearance
          of impropriety and Lance Corporal Lewis’
          interests in getting a fair and prompt
          resolution of his charges.

          I stand by my earlier analysis and findings;
          however, testimony of the trial counsel and
          the SJA demonstrate how little it takes to
          create an appearance of impropriety in some
          people’s minds. I’m mortally disappointed
          in the professional community that is
          willing to draw such slanderous conclusions
          from so little information. I wish I could
          do this with less emotion.

          I now find myself second guessing every
          decision in this case. Did I favor the
          government to protect myself from further
          assault? Did I favor the accused to
          retaliate against the government[?]

          . . . .

          I have consulted with the circuit military
          judge and other judges in the circuit in
          making this decision. I’m granting the
          motion for recusal for two reasons: One, in
          an abundance of caution, interpreting
          appearance of impropriety at its broadest
          possible meaning; and two, because my
          emotional reaction to the slanderous conduct
          of the SJA has invaded my deliberative
          process on the motions. The proceeding
          should begin anew at arraignment.




                               13
United States v. Lewis, No. 05-0551/MC

            The court is in recess until a new military
            judge is detailed and a new trial schedule
            is set. I apologize to everyone.

     Almost a month later, on February 15, 2002, an Article

39(a), UCMJ, session was convened before a new military judge,

LTC FD.   After making a record of the various administrative

proceedings that had occurred since MAJ CW’s recusal, LTC FD

announced that after reading the record and considering some of

his R.C.M. 802 conference rulings, he had decided to disqualify

himself from Lewis’s case.   Lieutenant Colonel FD stated that he

had concluded that “a reasonable person knowing the facts of

this case might reasonably question my impartiality, and . . . I

do have a personal bias or prejudice concerning a party.”

Further, concerning MAJ CW’s recusal, LTC FD made the following

comments:

            The manner in which [trial counsel] handled
            the voir dire in this case particularly
            offends me. Further, the SJA’s crass,
            sarcastic, and scurrilous characterization
            of the social interaction between Major [CW]
            and Ms. [JS], bespeaks an ignorance,
            prejudice, and paranoia on the part of the
            government that I can neither understand nor
            set aside. Accordingly, I am recusing
            myself from further service on the court-
            martial.

     On February 22, 2002, an Article 39(a), UCMJ, session was

convened before a new military judge, Captain (CAPT) PF, who had

been detailed to the case from another judicial circuit.

Concerned with any further delay in litigating a motion to



                                 14
United States v. Lewis, No. 05-0551/MC

release Lewis from pretrial confinement, CAPT PF arranged for

another military judge, Commander (CDR) RW, to hear a defense

motion to release Lewis from pretrial confinement.   Commander RW

heard that motion four days later and ordered Lewis released

from pretrial confinement on that same day.   Lewis had been in

pretrial confinement from August 14, 2001, until February 26,

2002, a period of 197 days.   Lewis spent forty of those days

confined after MAJ CW had recused herself from the case.

     On March 11, 2002, the court reconvened with CAPT PF again

serving as military judge.    Over the next two days CAPT PF heard

and ruled upon numerous defense motions including a motion for

administrative pretrial confinement credit, a motion for a

change of venue, a motion for dismissal based upon a violation

of Lewis’s right to a speedy trial, a motion for mistrial, a

motion to dismiss for unlawful command influence, and a motion

to dismiss for prosecutorial misconduct.   A number of these

motions involved allegations relating to the trial counsel’s

voir dire of MAJ CW and the SJA’s conduct with respect to the

Government’s effort to unseat MAJ CW as military judge.

     Although CAPT PF denied the motion to dismiss for unlawful

command influence, he did order some relief on the related

motion for a change of venue.   Captain PF noted that the defense

had received a change to a military judge from another judicial

circuit.   He further ordered that the SJA be disqualified from



                                 15
United States v. Lewis, No. 05-0551/MC

further participation in the case, that the SJA be prohibited

from observing further trial proceedings, and that a substitute

convening authority assume all post-trial responsibilities for

the case.   Captain PF also cautioned that although he was not

ordering that all court members be selected from another

military installation, the members should be carefully

scrutinized to ensure that they were not tainted by the prior

conduct in Lewis’s case.   Lewis subsequently chose trial by

military judge alone, entered guilty pleas pursuant to a

pretrial agreement, and was sentenced by CAPT PF as the military

judge.

                             Discussion

     Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2000), establishes

the congressional prohibitions against unlawfully influencing

the action of a court-martial:

            No authority convening a general, special,
            or summary court-martial, nor any other
            commanding officer, may censure, reprimand,
            or admonish the court or any member,
            military judge, or counsel thereof, with
            respect to the findings or sentence adjudged
            by the court, or with respect to any other
            exercises of its or his functions in the
            conduct of the proceedings. No person
            subject to this chapter may attempt to
            coerce or, by any unauthorized means,
            influence the action of a court-martial or
            any other military tribunal or any member
            thereof, in reaching the findings or
            sentence in any case, or the action of any
            convening, approving, or reviewing authority
            with respect to his judicial acts.



                                 16
United States v. Lewis, No. 05-0551/MC

        Lewis contends that there was unlawful command influence

when the command, through its trial counsel and SJA, forced the

recusal of MAJ CW, the first military judge detailed to his

case.    He contends that this conduct was designed to prevent MAJ

CW from hearing his prosecutorial misconduct motion.    Lewis

argues that if his conviction is allowed to stand, it will

create the appearance that a command can de-select military

judges and orchestrate the parties to a court-martial, which

raises serious doubt about the fairness of the military justice

system.    Lewis claims that the Government’s conduct was

outrageous, was not harmless beyond a reasonable doubt, and

cannot be allowed to stand without penalty.

        The Government responds that there was no unlawful command

influence and, even if there was, it had no prejudicial effect

in this case.    Noting that Lewis was not entitled to a specific

military judge to try his case, the Government argues that the

military judge was properly changed before Lewis requested trial

by military judge alone and that a change in military judges is

not a recognizable form of prejudice.    The Government argues

that there were protective remedial steps taken that ensured the

integrity of Lewis’s court-martial and that, absent any

demonstrable prejudice, no relief is warranted.

        At the outset we note that the granted issue and question

before us is not whether the defense has met its burden of



                                  17
United States v. Lewis, No. 05-0551/MC

raising unlawful command influence or whether there was unlawful

command influence in Lewis’s case.    Those issues were resolved

by the Court of Criminal Appeals:

               The unprofessional actions of the trial
          counsel and the SJA improperly succeeded in
          getting the military judge to recuse herself
          from the appellant’s court-martial. There
          can be no doubt that, but for the improper
          actions, the appellant would have been tried
          by Maj. W, vice the judges from the
          Southwest Circuit. To the extent that the
          SJA, a representative of the convening
          authority, advised the trial counsel in the
          voir dire assault on the military judge and
          to the extent that his unprofessional
          behavior as a witness and inflammatory
          testimony created a bias in the military
          judge, the facts establish clearly that
          there was unlawful command influence on the
          court-martial.

Lewis, 61 M.J. at 518.    The granted issue on unlawful command

influence does not challenge that ruling, nor has the Government

certified the correctness of the lower court’s conclusion that

there was unlawful command influence.    See Article 67(a)(2),

UCMJ, 10 U.S.C. § 867(a)(2) (2000).

     Where neither party appeals a ruling of the court below,

that ruling will normally be regarded as law of the case and

binding upon the parties.   United States v. Parker, 62 M.J. 459,

464 (C.A.A.F. 2006) (citing United States v. Doss, 57 M.J. 182,

185 (C.A.A.F. 2002)); see also United States v. Grooters, 39

M.J. 269, 272-73 (C.M.A. 1994); United States v. Sales, 22 M.J.

305, 307 (C.M.A. 1986).   The law of the case doctrine is a



                                 18
United States v. Lewis, No. 05-0551/MC

matter of discretionary appellate policy and does not prohibit

this court from reviewing the ruling below.   Parker, 62 M.J. at

464-65; United States v. Walker, 57 M.J. 174, 177 n.3 (C.A.A.F.

2002) (citing United States v. Williams, 41 M.J. 134, 135 n.2

(C.M.A. 1994)).   However, under the law of the case doctrine

this court will not review the lower court’s ruling unless “the

lower court’s decision is ‘clearly erroneous and would work a

manifest injustice’ if the parties were bound by it.”    Doss, 57

M.J. at 185 (quoting Williams, 41 M.J. at 135 n.2).     “That

standard is difficult to achieve:    a finding of manifest

injustice requires a definite and firm conviction that a prior

ruling on a material matter is unreasonable or obviously wrong.”

Ellis v. United States, 313 F.3d 636, 648-49 (1st Cir. 2002);

see also United States v. Moran, 393 F.3d 1, 7-8 (1st Cir. 2004)

(describing the burden of establishing manifest injustice as “a

steep uphill climb”).

     Although the Government has argued in its brief that there

was no unlawful command influence and did not concede the

existence of unlawful command influence during oral argument, it

has not carried its burden of establishing that the ruling of

the Navy-Marine Corps court was clearly erroneous or that

adhering to its ruling would create a manifest injustice.       Nor

does the record in this case support a determination that the

conclusion that unlawful command influence existed was clearly



                                19
United States v. Lewis, No. 05-0551/MC

erroneous or amounted to a manifest injustice.   Therefore, we

conclude that the lower court’s determination that there was

unlawful command influence is the law of the case and we will

not review that determination.

     As a general matter, “the defense has the initial burden of

raising the issue of unlawful command influence.”   United States

v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999) (citing United

States v. Stombaugh, 40 M.J. 208, 213 (C.M.A. 1994)).   At trial,

the defense meets its burden by showing “facts which, if true,

constitute unlawful command influence, and that the alleged

unlawful command influence has a logical connection to the

court-martial, in terms of its potential to cause unfairness in

the proceedings.”   Id. at 150.   A similar burden exists for the

defense on appeal where the defense raises unlawful command

influence by showing:   “‘(1) facts which, if true, constitute

unlawful command influence; (2) . . . that the proceedings were

unfair; and (3) . . . that unlawful command influence was the

cause of the unfairness.’”   United States v. Richter, 51 M.J.

213, 224 (C.A.A.F. 1999) (quoting Biagase, 50 M.J. at 150).

Once the issue of unlawful command influence has been raised,

the burden shifts to the government to demonstrate beyond a

reasonable doubt either that there was no unlawful command

influence or that the proceedings were untainted.   Stoneman, 57

M.J. at 41.   This burden is high because “‘command influence



                                  20
United States v. Lewis, No. 05-0551/MC

tends to deprive servicemembers of their constitutional

rights.’”    Gore, 60 M.J. at 185 (quoting Thomas, 22 M.J. at

393).

        Because the conclusion of the Navy-Marine Corps Court of

Criminal Appeals that there was unlawful command influence is

law of the case, we need not determine whether Lewis has met the

burden of raising the issue nor need we review whether the

Government has demonstrated beyond a reasonable doubt that there

was no command influence.    We are concerned only with whether

the Government has met its burden of demonstrating, beyond a

reasonable doubt, that these proceedings were untainted by

unlawful command influence.    We review this question de novo.

See United States v. Kreutzer, 61 M.J. 293, 299 (C.A.A.F. 2005)

(de novo review of whether constitutional error is harmless

beyond a reasonable doubt); United States v. Villareal, 52 M.J.

27, 30 (C.A.A.F. 1999) (de novo review of issues of unlawful

command influence).    Our review of the effect of this unlawful

command influence must necessarily consider both whether actual

command influence was cleansed from these proceedings as well as

whether any perceived unlawful command influence has been

eradicated.    Simpson, 58 M.J. at 374; Stoneman, 57 M.J. at 42.

We turn first to the actual unlawful command influence in this

case.




                                  21
United States v. Lewis, No. 05-0551/MC

     Authority to detail military judges has been delegated to

service secretaries.   Article 26(a), UCMJ, 10 U.S.C. § 826(a)

(2000).   The Secretary of the Navy has further delegated that

authority to the Judge Advocate General who has prescribed that

military judges will be detailed by and from a standing

judiciary.   See Dep’t of the Navy, Judge Advocate General Instr.

5800.7D, Manual of the Judge Advocate General (JAGMAN) para.

0130a.(1) (Mar. 15, 2004); Dep’t of the Navy, Judge Advocate

General Instr. 5813.4G, Navy-Marine Corps Trial Judiciary para.

6 (Feb. 10, 2006).   In addition, military judges of general

courts-martial are “designated by” and “directly responsible to”

the Judge Advocate General of the service.     Article 26(c), UCMJ.

Neither the government nor the defense at a court-martial is

vested with the power to designate, detail, or select the

military judge.    Conversely, neither party can usurp the

authority of the service secretaries or Judge Advocates General

by removing or unseating properly certified and detailed

military judges.

     A military judge “‘shall perform the duties of judicial

office impartially and fairly.’”      United States v. Quintanilla,

56 M.J. 37, 42 (C.A.A.F. 2001) (quoting Canon 3 of the American

Bar Association Model Code of Judicial Conduct (2000 ed.)).

Both the accused and the government are “permitted to question

the military judge and to present evidence regarding a possible



                                 22
United States v. Lewis, No. 05-0551/MC

ground for disqualification.”   R.C.M. 902(d)(2).     Should grounds

arise, the “military judge shall disqualify himself or herself

in any proceeding in which that military judge’s impartiality

might reasonably be questioned.”     R.C.M. 902(a).

     The orchestrated effort to unseat MAJ CW as military judge

exceeded any legitimate exercise of the right conferred upon the

Government to question or challenge a military judge.     But for

the Government’s attack upon MAJ CW, it appears unlikely that

there existed grounds for disqualification.    Nevertheless,

through suggestion, innuendo, and the SJA’s personal

characterization of the relationship between MAJ CW and Ms. JS,

the Government compelled MAJ CW to remove herself from the case.

Major CW’s own words clearly illustrate how the Government

itself created this disqualification:

          [T]estimony of the trial counsel and the SJA
          demonstrate how little it takes to create an
          appearance of impropriety in some people’s
          minds. I’m mortally disappointed in the
          professional community that is willing to
          draw such slanderous conclusions from so
          little information. I wish I could do this
          with less emotion.

          I now find myself second guessing every
          decision in this case. Did I favor the
          government to protect myself from further
          assault? Did I favor the accused to
          retaliate against the government[?]

Major CW’s recusal was the result of an unlawful effort to

unseat an otherwise properly detailed and qualified military




                                23
United States v. Lewis, No. 05-0551/MC

judge.   As found by the Court of Criminal Appeals, this was

actual unlawful command influence.    Lewis, 61 M.J. at 518.

     The record reflects that the SJA -- a staff officer to and

legal representative for the convening authority –- was actively

engaged in the effort to unseat MAJ CW as military judge.      The

trial counsel, who was provided advice on voir diring MAJ CW by

the SJA, became the tool through which this effort was executed.

The SJA went so far as to coordinate a possible review of MAJ

CW’s decision by the Navy-Marine Corps court and in so doing he

passed along his own gratuitous characterization of MAJ CW’s

relationship with Ms. JS.    The record also makes it clear that

the effort to unseat MAJ CW in Lewis’s case was a continuation

of an ongoing effort to remove MAJ CW from any case in which Ms.

JS served as civilian defense counsel.   Major CW made note of

this effort on the record:   “Well, I find it interesting that

I’m frequently voir dired on my acquaintance with Ms. [JS] when

my other military judge counterparts are never voir dired on

their acquaintance with her.”

     We are not convinced beyond a reasonable doubt that the

effects of this actual unlawful command influence were

ameliorated by later actions and remedial steps.   We are

concerned that the SJA’s instrument in the courtroom, the trial

counsel, remained an active member of the prosecution despite

participating fully in the unlawful command influence.   In



                                 24
United States v. Lewis, No. 05-0551/MC

short, the Government has not sustained its burden of

demonstrating beyond a reasonable doubt that Lewis’s court-

martial was free from the effects of actual unlawful command

influence from the moment that MAJ CW was detailed as military

judge.

        We do not doubt the qualifications and neutrality of CAPT

PF or CDR RW who eventually served as military judges in Lewis’s

case.    We are also mindful of the remedial measures ordered by

CAPT PF when he directed that the SJA be disqualified, that the

SJA be barred from sitting in the courtroom, and that there be a

new convening authority for post-trial actions.    A military

judge should direct such measures when he or she finds unlawful

command influence in a given case.     See Rivers, 49 M.J. at 443;

Sullivan, 26 M.J. at 444.     However, the actions taken by CAPT PF

fell short of removing doubts about the impact of the actual

unlawful command influence in this case.3

        Our review of the command influence in this case is not

limited to actual unlawful influence and its effect on this

trial.    Congress and this court are concerned not only with

eliminating actual unlawful command influence, but also with

“eliminating even the appearance of unlawful command influence


3
  Our decision in this case is based upon its unique facts as it
is presented to us. We do not speculate on what our decision
might have been had CAPT PF directed other remedial steps, short
of dismissal with prejudice, which would have put the case
before us in a different posture.

                                  25
United States v. Lewis, No. 05-0551/MC

at courts-martial.”   United States v. Rosser, 6 M.J. 267, 271

(C.M.A. 1979).   “[O]nce unlawful command influence is raised,

‘we believe it incumbent on the military judge to act in the

spirit of the Code by avoiding even the appearance of evil in

his courtroom and by establishing the confidence of the general

public in the fairness of the court-martial proceedings.’”

Stoneman, 57 M.J. at 42 (quoting Rosser, 6 M.J. at 271).     This

call to maintain the public’s confidence that military justice

is free from unlawful command influence follows from the fact

that even the “‘appearance of unlawful command influence is as

devastating to the military justice system as the actual

manipulation of any given trial.’”    Simpson, 58 M.J. at 374

(quoting Stoneman, 57 M.J. at 42-43).     Thus, “disposition of an

issue of unlawful command influence falls short if it fails to

take into consideration . . . the appearance of unlawful command

influence at courts-martial.”   Id.

     Whether the conduct of the Government in this case created

an appearance of unlawful command influence is determined

objectively.   Stoneman, 57 M.J. at 42.    “Even if there was no

actual unlawful command influence, there may be a question

whether the influence of command placed an ‘intolerable strain

on public perception of the military justice system.’”    Id. at

42-43 (quoting United States v. Wiesen, 56 M.J. 172, 175

(C.A.A.F. 2001)).   The objective test for the appearance of



                                26
United States v. Lewis, No. 05-0551/MC

unlawful command influence is similar to the tests we apply in

reviewing questions of implied bias on the part of court members

or in reviewing challenges to military judges for an appearance

of conflict of interest.   See, e.g., United States v. Miles, 58

M.J. 192, 194 (C.A.A.F. 2003); United States v. Calhoun, 49 M.J.

485, 488 (C.A.A.F. 1998); see also 28 U.S.C. § 455 (2000);

R.C.M. 902(a); R.C.M. 912(f)(1)(N).    We focus upon the

perception of fairness in the military justice system as viewed

through the eyes of a reasonable member of the public.     Thus,

the appearance of unlawful command influence will exist where an

objective, disinterested observer, fully informed of all the

facts and circumstances, would harbor a significant doubt about

the fairness of the proceeding.    Applying this test to the

instant case, we believe that a reasonable observer would have

significant doubt about the fairness of this court-martial in

light of the Government’s conduct with respect to MAJ CW.

     To find that the appearance of command influence has been

ameliorated and made harmless beyond a reasonable doubt, the

Government must convince us that the disinterested public would

now believe Lewis received a trial free from the effects of

unlawful command influence.   Despite the fact that CAPT PF was

from another judicial circuit and even though he ordered some

remedial action, we are not convinced that these proceedings

have been cleansed of the appearance of unlawful command



                                  27
United States v. Lewis, No. 05-0551/MC

influence.   The Government wanted to ensure that a given

military judge, properly detailed and otherwise qualified, would

not sit on Lewis’s case.   In the end, the Government achieved

its goal through unlawful command influence.   To this point,

from an objective standpoint, the Government has accomplished

its desired end and suffered no detriment or sanction for its

actions.4

     Because we conclude that neither actual nor apparent

unlawful command influence have been cured beyond a reasonable

doubt, we must consider what relief, if any, should be fashioned

in this case.   In Rosser, 6 M.J. at 273, after concluding that a

military judge did not properly consider the appearance of

unlawful command influence over witnesses and court members, we

set aside the findings and sentence and authorized a rehearing.

In United States v. Grady, 15 M.J. 275, 276-77 (C.M.A. 1983), we

also set aside the findings and sentence, and authorized a

rehearing where we concluded that the military judge did not

ensure Grady a trial by members “unencumbered from powerful


4
  The record before us does not indicate whether the unlawful
command influence in this case was the subject of any ethical or
disciplinary investigations or sanctions. Had such occurred,
they could have had an impact on the public’s perception and
perhaps restored some confidence in the military justice system.
Similarly, we are concerned that there appears to be no response
from supervisory officials such as the Staff Judge Advocate to
the Commandant of the Marine Corps or the Judge Advocate General
of the Navy. Therefore, we direct that the Clerk of the Court
send copies of this decision to those officials for review and
consideration of appropriate action, if any.

                                28
United States v. Lewis, No. 05-0551/MC

external influences.”   In Villareal, 52 M.J. at 30, we found

that the appearance of unlawful command influence upon a

convening authority was cured because the charges were forwarded

to a new convening authority after any possible taint arose.

The remedial actions taken or approved above have a common

thread in that they address the unique circumstances of each

unlawful command influence issue individually and they remedy

the specific harm.

     To fashion an appropriate remedy in this case, we must

consider both the specific unlawful influence (unseating of the

military judge) and the damage to the public perception of

fairness.    Since the appearance of unlawful influence was

created by the Government achieving its goal of removing MAJ CW

without sanction, a rehearing before any military judge other

than MAJ CW would simply perpetuate this perception of

unfairness.   Further, even if we wished to consider ordering a

rehearing before MAJ CW, that option is unavailable in light of

her acknowledgement that the conduct of the SJA “invaded [her]

deliberative process” and influenced her specific decision to

disqualify herself from this case.

     We have long held that dismissal is a drastic remedy and

courts must look to see whether alternative remedies are

available.    United States v. Cooper, 35 M.J. 417, 422 (C.M.A.

1992).   Dismissal of charges with prejudice, however, is an



                                 29
United States v. Lewis, No. 05-0551/MC

appropriate remedy where the error cannot be rendered harmless.

Gore, 60 M.J. at 189 (holding that a military judge did not

abuse his discretion in dismissing charges with prejudice to

remedy unlawful command influence).

        Having found that the unlawful command influence in this

case has not been cured, we cannot let the findings and sentence

stand.    Although it is drastic, we believe that the only remedy

to cure the unlawful command influence in this case is to

reverse the decision of the lower court, set aside the findings

and sentence, and dismiss the charges with prejudice.      We do not

do so lightly, but the nature of the unlawful conduct in this

case, combined with the unavailability of any other remedy that

will eradicate the unlawful command influence and ensure the

public perception of fairness in the military justice system,

compel this result.

        In light of our disposition of the first granted issue, it

is unnecessary for us to address the remaining issues in this

case.

                               Decision

        The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed.       The findings and sentence are

set aside.    The charges and specifications are dismissed with

prejudice.




                                  30
United States v. Lewis, No. 05-0551/MC


        EFFRON, Judge (concurring):

        I agree with Judge Erdmann’s opinion for the Court, and

write separately to underscore the unique circumstances of this

case.    The military judge who completed the trial and the Court

of Criminal Appeals each had the opportunity to dismiss the

charges without prejudice, accompanied by an order disqualifying

the command from any further proceedings.    Under such an order,

any subsequent decisions as to investigation, preferral, and

referral could have been made by commanders and legal personnel

untainted by the impermissible actions in the original

proceedings.

        In the absence of such an order, we have before us a case

in which the prejudice from unlawful command influence was

compounded by post-trial processing delay.    Over three years

transpired from the end of trial to the completion of review by

the Court of Criminal Appeals, including over fourteen months in

which the case was pending action by the convening authority

under Article 60, Uniform Code of Military Justice, 10 U.S.C. §

860 (2000).    In light of the unlawful command influence detailed

in the opinion for the Court, it would be inappropriate to

subject Appellant to new proceedings after the untimely post-

trial processing of this case.    In that context, dismissal with

prejudice provides an appropriate remedy.
