Opinion of the Court
Pursuant to his pleas, the accused was convicted by a special court-martial of transferring and using marijuana, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. He was sentenced by members to a bad-conduct discharge, confinement at hard labor for 3 months, forfeiture of $330.00 pay per month for 3 months, and reduction to airman basic. The convening and supervisory authorities approved the sentence as adjudged, and the Court of Military Review affirmed.
We granted the accused’s petition for review on the following issue:
DOES THE MILITARY JUDGE HAVE A DUTY SUA SPONTE TO RESTRICT ARGUMENT OF COUNSEL UNDER MANUAL PARAGRAPH 72c WHERE COUNSEL ARGUE COMMAND POLICY?
We answer in the affirmative and reterse.
The subject of command policy was first raised by defense counsel during his voir dire of the members empaneled to sentence the accused. He ascertained that each member of the court-martial knew “what the SAC [Strategic Air Command] Drug Rehab Program” was. Subsequently during closing arguments on sentence, the assistant trial counsel contended that drug “activity cannot under any circumstances be tolerated, especially in SAC.” In response, defense counsel asserted that the drug policy in the Air Force varied from command to command, but that it was most strictly enforced against members of the Strategic Air Command. Numerous times he stated that the penalties for discovered drug offenses were most severe in SAC, and asserted that had the accused been assigned to some other command, he would not face such strict treatment. He concluded that imposition of “[a] BCD I think is rediculous [sic]. It’s the knee-jerk SAC, and I don’t say Air Force, SAC reaction to this offense.” The assistant trial counsel responded:
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As you know, in SAC, under the Rehabilitation Program, persons convicted of transferring marijuana or any drug are not eligible for rehabilitation. So to even consider that would be foolish, out of the question.
There were no objections to these comments and the military judge was silent.
At the conclusion of his sentencing instructions (which contained no limiting instructions referring to counsel’s comments) the following ensued:
MJ: Major Billings asks, “Reference has been made several times to SAC policy on drug abuse. Has that policy been admitted as evidence for us to review?” The answer to your question is no, it has not. Does that satisfy you, sir?
MEMBER (...): It must.
MJ: The fact is, that regardless of what SAC policy is, or any other policy is, it is your independent determination of what is an appropriate sentence in this case which should determine what sentence you vote for or impose.
Regardless of our conclusions as to the wisdom and propriety of defense counsel’s tactics, see United States v. Rivas,
We have long condemned any references to departmental or command policies made before members charged with sentencing responsibilities. United States v. Silva,
A trial must be kept free from substantial doubt with respect to fairness and impartiality. “A judicial system operates effectively only with public confidence— and, naturally, that trust exists only if there also exists a belief that triers of fact act fairly.” United States v. Stringer,5 USCMA 122 ,17 CMR 122 . This appearance of impartiality cannot be maintained in a trial unless the members of the court are left unencumbered from powerful external influences.
United States v. Fowle, supra at 352,
Further, it is the fact of the reference to command policy that has been condemned and not the source of the reference. United States v. Davis, supra; cf. United States v. Silva, supra at 109,
Since neither counsel exhibited any awareness of our previous decisions in this
The decision of the United States Air Force Court of Military Review is reversed as to sentence and the sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.