## Facts

- Specialist (SP4) Leslie J. Payne, U.S. Army, faced charges involving mishandling and disclosure of classified government materials.
- A major was appointed as the Article 32, UCMJ, investigating officer for the pretrial investigation.
- The investigating officer was informed that the staff judge advocate’s office was available to provide legal advice.
- Instead, the investigating officer repeatedly consulted the trial counsel ex parte, without the defense’s knowledge or participation.
- The ex parte discussions addressed legal and procedural matters, including the burden of proof at the Article 32 investigation, evidentiary standards, and the legality of a search that produced incriminating documents.
- Payne was later convicted at court-martial of failure to safeguard classified material, wrongful appropriation of government documents, and furnishing classified material to an unauthorized person.
- The Army Court of Military Review affirmed the findings and sentence, rejecting the claim that the Article 32 process lacked impartiality.

## Issues

1. Whether repeated ex parte consultations between an Article 32 investigating officer and trial counsel concerning legal standards and evidentiary matters violate Article 32’s requirement of a thorough and impartial investigation.
2. Whether such a defect requires setting aside the resulting court-martial findings and sentence.

## Decision

- The Court of Military Appeals held that the investigating officer’s ex parte communications with trial counsel were improper.
- The court concluded the communications compromised the required impartiality (including the appearance of impartiality) of the Article 32 investigation.
- The court set aside the court-martial findings and sentence and remanded for further proceedings consistent with its opinion.

## Legal Principles

- An Article 32 investigating officer must act as a neutral, independent investigator; the investigation must be thorough and impartial in fact and appearance.
- Trial counsel may not serve as the investigating officer’s private legal advisor through off-the-record, one-sided communications, particularly on matters bearing on evidentiary admissibility and legal standards.
- Characterizing ex parte consultations as merely “procedural” does not cure the problem when the advice concerns matters that can affect the investigation’s conclusions and recommendations.
- When neutral legal advice is available (e.g., from the staff judge advocate’s office), bypassing that resource in favor of ex parte reliance on trial counsel creates an unacceptable risk of bias.
- A materially compromised Article 32 investigation can require reversal of ensuing findings and sentence when the error is not harmless.

## Conclusion

The court ruled that an Article 32 investigation is invalid when the investigating officer repeatedly seeks ex parte legal guidance from the prosecutor on matters affecting the investigation’s fairness, and it reversed Payne’s conviction and sentence because the process failed the required standard of impartiality.


United States v. Payne, 3 M.J. 354 (C.M.A. 1977)