As a number of our alert readers have noted, Senators Boxer (D-Cal.) and Shaheen (D-N.H.) sent this letter to Secretary of Defense Hagel calling for him to take steps in response to Lieutenant General Franklin’s disapproval of the conviction of Lieutenant Colonel Wilkerson.

They ask Secretary Hagel whether he can reverse the disapproval.  This Air Force Times article quotes Yale Law Professor Gene Fidell providing this succinct answer:  “Clemency ‘is a done deal. This is final.'”  They also urge SECDEF, “in the strongest possible terms, to take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions.” But, of course, Congress gave CAs that power in Article 60(c).  They also ask Secretary Hagel to “work with us as we consider additional legislative options.”  We’ll be on the alert for bills doing away with convening authority’s Article 60(c) authority to disapprove the findings of a court-martial.

55 Responses to “Senators Boxer and Shaheen call on SECDEF to address CA’s disapproval of LTC Wilkerson’s conviction”

  1. Brian says:

    Why isnt it appealable?  If federal prosecutors can appeal a district judge’s sentence, what prevents an appeal?  If it is not constitutional, why couldn’t a higher command pull the case?  
    It would seem that the default in our military system is that a higher commander can override a lower commander.  But, I am sure mr Fidell has a good basis for his answer…I’m just curious?

  2. Anonymous says:

    For one thing, the statute (Art 76) says it’s final. Though “military due process” no longer exists as of a few days ago, it is also, arguably, the functional equivalent of an acquittal. I don’t know exactly why the convening authority made this decision. Even assuming for the sake of argument he had sound reasons, unless carefully handled, this is a live grenade that could end up making the military justice system less than the exemplar we like to think it is. Don’t forget that FRE-MRE 413/414, which, for better or worse, changed evidence law according to the substantive crime at issue (sexual assault and child sex assault), were Sen. Feinstein’s gift to federal and military criminal jurisprudence. The new SecDef needs a fire brigade in his general counsel’s office if an issue-oriented statutory scheme is to be headed off.

  3. Dwight Sullivan says:

    The short answer is that Congress made it final.  Article 60(c)(3) says that “[t]he convening authority or other person acting on the sentence . . . may — (A) dismiss any charge or specification by setting aside a finding of guilty thereto.”  Congress provided no other authority with the power to overrule that discretionary decision, which is taken as a matter of command prerogative.

  4. Matt says:

    I wonder if these Senators are also calling for an end to the Pardon powers of the President and state Governors.  It’s not like we’ve got convening authorities handing out clemency like candy.  The reason this is such news is because this type of clemency happens so rarely in the military. 

  5. Ed says:

    What should the Secretary of Defense do. Fire the CA for doing his job.

  6. Tami says:

    LTG Franklin did the right thing in the face of political pressure to keep doing the wrong thing.  Instead of waiting for this case to go through the appellate process for years and years and years (like a case involving a missing good soldier’s book), with iffy evidence and the specter of UCI that was raised at the trial, LTG Franklin made the brave call to get rid of the case and let everyone move on.
    I’m sure LTG Franklin had his reasons, but he doesn’t have to say what they are.  He can act for reasons unrelated to the case (for instance, he dismissed it because there was a blue moon that night).  He doesn’t even have to have a reason.  He can consider evidence that was kept out at trial.  he can consider evidence that was discovered after trial.
    I’m resenting Congress’ constant interference in military justice, when most of them have no idea what we do or how we do it.  There should be a requirement to serve in the military and receive military justice training before you can run for Congress.
    Our military justice system is being assaulted, and our constitutional right to be presumed innocent until proven guilty is next.  This is the worst kind of unlawful command influence imaginable, and I hope some judge somewhere has the guts to call it for what it is (former-Judge Ham?), and start throwing cases out at trial.

  7. k fischer says:

    Nancy Montgomery from the Stars and Stripes wrote at paragraph 13 last sentence: “The decision was contrary to the recommendation of his staff legal adviser.”
    Is she referring to the post-trial recommendation?  If the SJA did recommend the execution of the sentence as adjudged initially, then would s/he have to draft a new recommendation if it changed after the defense submitted clemency?
    It just sounds really bad when the CA disregards the advice of the SJA.  Of course, it sounds like they just want to have a hearing so the SecDef can tell them his hands are tied and if they want it changed, then they need to amend the UCMJ.  Then, they will get together and, once again, muck up the Code.

  8. Phil Cave says:

    So let’s be clear.
    It really isn’t the CA who decides clemency?  Or at least it shouldn’t be.  It is the lawyers.  If that is the case then why do we need a statutory change for something that already exists.  I’m sure all this uproar will have a salutory effect on future CAs who feel like ignoring the lawyers and we will continue with the SJA making the decisions.
    The times I negotiate a PTA I tell the client not to worry too much about what the TC is “recommending” isn’t always the likely deal.  I tell the client that we are usually dealing with the SJA.  What the SJA is willing to recommend to the CA is the likely PTA.  So I’m right, that’s what happens or is supposed to happen?  Who knew.

  9. Phil Cave says:

    It is alleged that the Chinese have a proverb, although many now claim the English – actually the English ambassador to China in the 1930’s invented it.  
    “May you live in interesting times.”  Actually it’s thought of as one of three curses.  The English can be quite ironic and cynical.  Think of what was going on in the world in the middle 1930’s.
    Anyway, the second part of the curse is apropos.  “May you come to the attention of powerful people.”
    The third part, “May you get your wishes.”
    Your three curses for the day while you ponder the snow, rain, sleet, or whatever.

  10. Snuffy says:

    I have been an SJA a for quite a few years and have worked withmany different convening authorities.  Most of the time they follow my recomendations, but some times they dont. Of course they have minds of thier own, Phil, and sometimes I am disapointed by thier decsions.  But when the discusion is over,  the decsion is made.  I have been very lucky to avoid a set aside in a high profile case, but it has happend in. A very low profile minor case.  It still felt like a kick in the face to me, the trial counsel, and the panel who made the original decsions.    

  11. Dwight Sullivan says:

    During Congress’s consideration of the Elston Act, Dwight D. Eisenhower, who was then the Army Chief of Staff, asked to testify before the House Armed Services Committee.  He made as great a case for a command-controlled military justice system (which we have) as I’ve seen.  I may post that in full later on.  But he also made an interesting point later in an exchange with Congressman Elston:  “I might tell you, as a personal experience, that my judge advocate all during the war was always against me when I wanted to reduce and mitigate sentences.”

    My understanding is that Lieutenant General Franklin said he set aside Lieutenant Colonel Wilkerson’s conviction because he didn’t think the offense had been proved beyond a reasonable doubt.  Congress made that his call, not his SJA’s.  As General Eisenhower’s comment suggests, SJAs may feel protective of a court-martial conviction and sentence — particularly where the prosecutors work for them and the defense counsel are in a separate chain of command.  So while it doesn’t help the optics if the SJA recommended approval and Lieutenant General Franklin nevertheless disapproved the findings, that shouldn’t matter in our command-controlled military justice system.

  12. Tami says:

    Now they’re calling on LTG Franklin to be fired:
    I wonder what McCaskill’s track record was as a county prosecutor of “many challenging rape and sexual assault cases.”
    Maybe Mr. Frank Spinner can shed some light on this?
    Also, is anyone considering a FOIA request for the record of trial?  It had to have been typed verbatim.

  13. Lieber says:

    In the long run I expect us to lose command discretion on non-military specific offenses.  And I think that’s a good thing.  It’s a bit like town mayors overruling the DA.  The whole setup is stupid and a relic of the conscription military (just like many other exclusive aspects of military culture that need to go).
    Phil, some GCMCAs listen to their SJAs…others do not.  There are plenty of GCMCAs who think they know everything about everything.

  14. Phil Cave says:

    Snuffy, you are of course correct.  And it is likely true that my broad generalization ignores or discounts your situation, which I agree does happen.  And of course it does happen the other way.  IO/TC/SJA recommends no court-martial, but the CA refers.  And of course perceived outliers or cases such as this aren’t always the best indicator of reality.  But as Jim Clarke is fond of reminding us, we all have our contextual biases.  :-)

  15. Christopher Mathews says:

    Being a product of my environment and all, I have no issue with the CA’s clemency power.  I have had for some time, though, a nagging suspicion that the power is more likely to be exercised on behalf of Colonel Snuffy than it is Private Snuffy. 
    I would be happy if that were proven wrong — that senior officers are not more likely, on a per capita basis, to receive clemency than enlisted troops — but the numbers are probably so small that no valid data exists to prove or disprove the hypothesis.   

  16. Cloudesley Shovell says:

    I’ve sung this tune before, but the military justice system exists to enforce good order and discipline in the armed forces.  It is not a system of general criminal justice.  Every offense under the UCMJ is thus a “military-specific” offense.  The commanding officer is responsible for the good order and discipline of his unit, and the UCMJ and courts-martial are tools in his kit.  Private Slovik was executed in 1945 in an effort to enforce good order and discipline in the face of widespread desertions during the Battle of the Bulge.  The sentence had nothing to do with some notion of general criminal law.  In no case should that authority ever be ceded to lawyers who are not accountable for the good order and discipline of a military command.  Never.
    If Congress doesn’t like the current system, Congress can change it.   Congress can make rules for federal or state prosecution of off-base offenses for example.  Perhaps Congress wants to return to the pre-Solorio days of service connection.  Fine, pass a law.  Perhaps Congress wants to put lawyers in charge of military good order and discipline.  Fine, pass a law.  But it is nothing more than cheap, cowardly political theatre to whine to the SecDef about a system that Congress  put in place and that Congress can change at any time. 
    Finally, so far as clemency goes, former Supreme Court Justice Owen Roberts led a huge post-WWII clemency commission, granting clemency in the vast majority of the many thousands of cases where soldiers were still held in prison at the conclusion of the war.,4602232
    Kind regards,

  17. Tami says:

    Unfortunately, Congress did change the law in 2006 when it revised Article 120, UCMJ, to make it much more conviction-friendly.  Look at the CF that resulted from that tinkering.  And now with the blatant pressure from Congress to prosecute and convict more, it’s getting even worse, and there’s the risk of a case being thrown out simply due to UCI (maybe the CA tossed the Wilkerson case for that very reason).  The more Congress meddles, the more it backfires.

  18. DH Mazur says:

    Let’s not skip over the first, and most important, matter that Senators Boxer and Shaheen raise in their letter, something they have every right to expect:
    “As we understand, General Franklin has not adequately explained why he chose to overturn a guilty verdict by a jury of high-ranking military officers . . .”
    There is a difference between 1) having discretion by statute to make a decision and 2) being fully accountable for whatever decision is made.  We shouldn’t confuse these two aspects of command authority.  Having authority to do something does not mean you have no obligation to justify or explain it.  Unfortunately, too often there is little command accountability for command judgment, under some mistaken assumption that it’s inappropriate for civilians to meddle in military matters.
    I hope this convening authority gets a bowlful of accountability for this decision.  He may have been right, he may have been wrong, but he has an obligation to explain his judgment and convince people that he is using it wisely.  He doesn’t get a pass because he wears the uniform.
    A former Air Force officer and author of A More Perfect Military: How the Constitution Can Make Our Military Stronger

  19. Christopher Mathews says:

    That’s a catchy tune, Cloudesley, and I know the lyrics by heart.  It’s pretty much how I start off explaining the whole concept of courts-martial to civilians. 
    Tami, I don’t mind Congress tinkering — the Constitution explicitly gives them the power to do so.  That doesn’t mean I think they always exercise the power wisely, but I don’t begrudge it.

  20. Tami says:

    Let’s face it–whatever the CA’s explanation is, the senators won’t be happy with it, because they’re not happy with the result.
    Remember ACCA’s memorandum opinion in U.S. v. House (2009), where ACCA threw out a rape conviction because they didn’t believe the “victim?”  Where was the outrage over that?

  21. Dwight Sullivan says:

    Fair point, Professor Mazur, though surely the Senators were jumping the gun to proclaim, “This is a travesty of justice,” before hearing that explanation.

  22. Christopher Mathews says:

    Spot on target, DH. 

  23. Christopher Mathews says:

    Tami, even assuming that the senators won’t like the answer, does it necessarily follow that the question is illegitimate?

  24. Dwight Sullivan says:

    Here’s a link to the House ACCA opinion that Tami mentions above:$FILE/mo-house,%20fc.(Corrected%20Copy).doc

    Of course, NMCCA was criticized for its Lucas opinion setting aside an Article 120 conviction on factual sufficiency grounds, including a post on 31(b)log by the Army JAG School’s Jim Clark headlined, “NMCCA reverses rape conviction for insufficiency, broadly endorsing rape myths,” a critique echoed by Nancy Parrish in her testimony to the U.S. Commission on Civil Rights.

    Link to Jim Clark’s piece:

    Link to NMCCA’s Lucas opinion:

    (I’m not sure it should matter, but I find it interesting that the Lucas opinion was written by a female judge and that two of the three judges on the opinion are females.)

  25. Tami says:

    Questioning the reasons for the CA’s actions is legitimate–their method of questioning is not, IMO.  And I agree, they have the power to tinker with our UCMJ.  But, the power to tinker with the UCMJ, much like the power of the Force, is a great power that must be used wisely.  In order to use it wisely, they have to know what they’re doing.  I have no confidence that they know what they’re doing, because if they did, they wouldn’t have asked SECDEF about reversing LTG Franklin’s decision and for him to curtail CAs’ ability to unilaterally reverse trial court’s decisions, and there wouldn’t be any suggestion to fire him.

  26. stewie says:

    After that last post, I’m wondering how Yoda handled good order and discipline in the Clone Army!
    I think the reality is that this could be a nail in the coffin of CA discretion in at least 120 cases.  This does play right into the hands of their central argument against command discretion in sexual assault cases.

  27. Atticus says:

    Why isn’t this some form of UCI, or at least UI?  I suppose one could say UCI is aimed at the CA, but what happens when someone higher than the CA attempts to influence his discretion? The rules for military commissions has a broader definition of “influence” than UCI, see 10 USC 949(b)(a)(2), which says, “No person may attempt to coerce or, by any unauthorized means, influence—(A)the action of a military commission under this chapter, or any member thereof, in reaching the findings or sentence in any case; (B)the action of any convening, approving, or reviewing authority with respect to their judicial acts; or (C)the exercise of professional judgment by trial counsel or defense counsel.”  Seems to me Congress does not want people trying to influence the military commissions CA, so why should this be any different?  

  28. Bill C says:

    When I taught Military Law at the Law School level, I would pose this hypo:  Suppose a sniper, who was the best in the business, was needed for an urgent mission to take out the head of a terrorist organization.  A month before the mission, he rapes or murders someone.  Should the commander have the discretion to not bring charges against him becasue his skill set is too invaluable?  I think this goes back to whether we want military justice to be primarily a different means of practiciing criminal law, or a means to assist commanders in running the military.

  29. Atticus says:

    Well, Bill, the sniper ought to go complete his mission, then go to prison.  (With a very short sentence no doubt due to all his awesome mitigation – none of which would buy him a day off his sentence in state or federal court)

  30. SPV says:

    My initial reaction is that Senator McCaskill’s letter to the Chief of Staff of the Air Force is asking the Chief of Staff of the Air Force to commit UCI in violation of Article 37.
    To call upon a higher ranking officer to consider removing a convening authority for exercising his legal authority under the UCMJ is, in effect, to ask the higher authority to engage in unlawful command influence in violation of the very Code passed by Congress.
    Article 60 and Rule for Courts-Martial 1107 provide the standard. If Congress wants to change the standard, that is their legislative prerogative.
    Convening authorities, however, by virtue of their role in the military chain of command and court-martial process, act as the clemency authority over matters of military justice that uniquely affect the good order and discipline of their organization, which they must ensure is ready at a moment’s notice to pick up arms and defend the nation. One would hope that reality continues to factor into any change to the rule.
    I do, however, think it would be wise for the convening authority to explain his reasoning in some manner (I’m not sure how to best do this, PAO, etc.). Allowing sexual offenders to go unpunished is not justice, does not achieve deterrence, and reflects poorly on any institution based on a higher set of values.  Rule 1107(d)(2) states: “The convening authority shall approve that sentence which is warranted by the circumstances of the offense and appropriate for the accused.” Though he is not legally required to do so, the convening authority should be able to articulate why setting aside the decision of the panel was warranted by the circumstances – not just for members of Congress – but more importantly for the woman a military panel believed beyond a reasonable doubt was the victim of a sexual crime.

  31. Bill C says:

    Atticus: I don’t disagree, but my bigger point is what role do we want the Mil Jus system playing?  Criminal court or tool of discipline?  I disagree that this would not buy him a day off his sentence in state court.  Many state courts now have veteran’s courts which are typically handing out sentences which take a member’s service into consideration as E&M.  I have seen sentences dramatically lower than I would have seen at court-martial.

  32. RY says:

    To go back to one of the first questions.  I agree the CA’s decision is not appealable but I’m not aware of a CA having the ability to dismiss with prejudice…that language is not in the statute and dismissal is the way to authorize a rehearing if, for example, there was a procedural error in the trial such as failing to instruct on a required element or determining that a conviction on an LIO was improper because it’s now clearly not an LIO.  In each case, the CA can convene a new court and double-jeopardy wont apply because the UCMJ authorizes retrials when a “guilty” verdict has not been approved.  
    In this case, I doubt Lt Gen Franklin would convene a new court, but what precludes a higher commander with CA powers from doing so to placate the mafia response to exercise of clemency?

  33. Dwight Sullivan says:

    Romeo Yankee, retrials following CAs’ disapproval of findings is addressed by Article 60(e)(3). Based on the news reports, it doesn’t sound like Lieutenant General Franklin set aside the findings in a manner that authorized a rehearing pursuant to Article 62(e)(3):

    A rehearing may be ordered by the convening authority or other person taking action under this section if he disapproves the findings and sentence and states the reasons for disapproval of the findings. If such person disapproves the findings and sentence and does not order a rehearing, he shall dismiss the charges. A rehearing as to the findings may not be ordered where there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered if the convening authority or other person taking action under this subsection disapproves the sentence.

    If — as the reporting suggests — the CA didn’t authorize a rehearing, then the case doesn’t fall within the Article 60(e)(3) exception and Article 44(a) would appear to bar retrial.

  34. DMW says:

    R.C.M. 1107(e)(1)(C)(ii) and Article 60(e)(3) appear to preclude a rehearing if the dismissal was based on a lack of sufficient evidence in the record to support the dismissed guilty findings.

  35. k fischer says:

    I like to hunt deer because I love the way they taste and they don’t sell venison at the Fresh Market.  I’m not a big fan of hanging their antlers on my wall.  And, even though I have every right to, I don’t take pictures with them with their tongues hanging out, blood coming out of their nose, or them hanging upside down on a hook right before I gut and quarter them.  On the rare occasion I don’t butcher them myself, I don’t throw them onto my hood and drive them to the deer processor, so everyone can see how I killed this beautiful creature that merely an hour ago was looking for a little lovin’ from a doe.
    Even though I have every right to do those things, I don’t.  The reason I refrain is not because of the Bambi loving vegans like my Sister-in-Law who makes puking noises when I grill deer burgers for her Dad on Saturdays.  She’s a moron who is a part of the minority of the population who is actively anti-hunting.  The reason I refrain is because of the majority of the population who doesn’t care enough to act one way or the other about hunting or gun control, and most likely doesn’t want to infringe on anyone’s 2d Amendment rights or right to hunt.  Because if I start doing stupid crap like that, then perhaps that will make them become anti-hunting and start listening to and voting for politicians who are anti-hunting or anti-gun.
    So it is from that perspective that I am unable to understand why anyone could think that in today’s post-Invisible War/Lackland AFB/women-in-combat times such a decision without a decent explanation would be good for military justice.  This case has implications far beyond this court martial, and could be the beginning of the end of command discretion because of the handling of this case.  Here is what has been reported by the Stars and Stripes:
    A 5 member panel, presided over by a military judge, convicted a field grade officer of sexual assault for getting into a bed where a drunk civilian female was sleeping where he grabbed her breast and rubbed her vagina.  This same officer apparently had been in trouble before for looking over a bathroom wall stall to watch a subordinate’s wife urinate.  After the Staff Judge Advocate recommended that the findings and sentence of 1 year confinement and a dismissal be approved, the Convening Authority dismissed the case stating that he did not believe the evidence was sufficient to convict him beyond a reasonable doubt.
    Sounds pretty bad to me and I’m a defense hack.  Think how it sounds to your average voter who didn’t really think or care about sexual assault in the military before, but has recently seen the Invisible War.  I hope and want to believe that there is a good explanation for the dismissal.  I just wish it existed and was stated to the public.

  36. Vic Ferrari says:

    k fischer is exactly right here – this is a terrible optic.  If the CA wanted to take care of an FGO in this specific case without jeopardizing the entire MJ system he should have simply not approved the dismissal.  Let the guy do his 9 months of confinement and then retire on a DoD pension.  That would have smelled a little funny, but could have easily been explained as an act of mercy to the guy’s family. 

  37. k fischer says:

    Hold up a second.  If the CA believed that the evidence was truly lacking for guilt beyond a reasonable doubt, then I think he should have done what he did, but explained it a little better. I think that if he truly believed that the jury made the wrong call on findings, then it would be a travesty of justice to let him serve 5 more months.  Nobody who is innocent should be in jail.  Of course, if he thought there was enough evidence to convict, then you are right, he could have disapproved the dismissal to save his retirement.  
    My point is that he has the discretion to do what he did and not explain his reason, just like I have the discretion to parade a dead deer in the back of my truck.  However, I refrain from doing that because it just isn’t prudent in today’s times where everyone is talking about gun control in relation to hunting.  Just like it isn’t prudent to dismiss a sexual assault conviction with no real explanation in today’s military.  Granted, he will never convince Anu Bhagwati, Nancy Montgomery, Sen. Claire MacCaskill, Sen. Barbara “Don’t Call Me Ma’am” Boxer, or Rep. Speier that his reasoning is good.  But, hopefully his reasoning will be good enough to convince members of Congress who think command discretion is a good thing to vote against any further amendments to the UCMJ.

  38. stewie says:

    Hard to argue with that logic.  As I said, were I already suspicious of whether or not commanders took sexual assault seriously then this result without explanation wouldn’t positively address such suspicions.

  39. John O'Connor says:

    “My understanding is that Lieutenant General Franklin said he set aside Lieutenant Colonel Wilkerson’s conviction because he didn’t think the offense had been proved beyond a reasonable doubt. Congress made that his call, not his SJA’s. As General Eisenhower’s comment suggests, SJAs may feel protective of a court-martial conviction and sentence — particularly where the prosecutors work for them and the defense counsel are in a separate chain of command. So while it doesn’t help the optics if the SJA recommended approval and Lieutenant General Franklin nevertheless disapproved the findings, that shouldn’t matter in our command-controlled military justice system.”
    This is very well said and I’m tempted not to try to expand on it.  But I will.  The Supreme Court said in Orloff v. Willoughby, “Judges are not given the task of running the Army.”  Neither are judge advocates.  And for that I am thankful.

  40. John O'Connor says:

    I think somebody should sue the Secretary of Homeland Security over this.

  41. Tami says:

    I am all for a written explanation–in this case.  And given the Congressional inquisition (not inquiry), I think he’ll have to write something.  And maybe Congress and/or the POTUS will require a written explanation for the decision, as a result of this case.  But I’m concerned about the chilling effect that will have, if CAs are worried about the public and/or Congress thinking their reason for clemency isn’t “good enough.”  We have a deliberative process privilege for judges and panel members–no one is allowed to invade their thought process as to how they reached their decisions on findings and sentence.  

  42. stewie says:

    feels like there might end up being two options, explain yourself with the possibility of a chilling effect on something that rarely occurs anyways, or completely having said power taken away.

  43. Tami says:

    What would Yoda do?

  44. Christopher Mathews says:

    Yoda would never have referred the charges to begin with.  “There is no try.”

  45. WWJD says:

    It seems to me that whether this should be celebrated or condemned depends on the ROT.
    It’s too early to call for firings for letting a “guilty person” walk or a pat on the back for dismissing a crummy case that probably should not have been prosecuted in the first place.
    If it’s the former, it would have been nice to have someone like this in the Foster case (which was obviously flimsy).
    On the other side of things, I knew a e-5 who got charges dropped for steroids because he knew the Commander was bagging a e-5.
    As for “Ma’am Senator” She needs to chill out.  Where was her phony Outrage when Bubba pardoned his freinds – or Bush thereafter.  Clemency by the CA is handled with better responsibility than Govenors or even the POTUS.
    Sexual assult cases are also handled thouroughly – the issue of those is whether they are reported or not, there is no issue as far as prosecutions.

  46. Lieber says:

    “Sexual assult cases are also handled thouroughly – the issue of those is whether they are reported or not, there is no issue as far as prosecutions.”
    Not always.  I’ve still seen CID screw them up horribly.  And when you get into cross-jurisdiction matters..the ball sometimes gets dropped.  Proper procedures aren’t followed as often as we claim.

  47. Tami says:
    Not a shocker.  I don’t think it matters that he was taken off the promotion list, because even if he stayed, he would never get Senate confirmation.  He’ll be lucky to retire as a O-5.

  48. k fischer says:

    Thinking outside the box here.  But, if I, as a defense counsel, went before the CA during clemency and got a charge set aside that I knew would be a political hot potato for the CA, I think I would feel a certain duty to come to the CA’s defense.   First, so the next Convening Authority I go in front doesn’t think I am going to convince him to make a decision that will cause him many problems down the road.  Second, if I do it correctly, then people will know that I am the attorney who didn’t give up and ultimately got the charges set aside and my client reinstated.
    If I’ve got a really strong case for clemency because the military judge did not let the panel see exculpatory evidence, the accuser made an unknown pretrial or  post-trial statement to a friend that she made the whole thing up, or the panel completely disregarded some evidence that was very exculpatory, then I think I would write a letter to these Congressional Representatives outlining the evidence that I submitted that Nancy Montgomery is failing to report.  The letter would be redacted, as well as the exhibits that were attached to it.  I would also submit the letter to McClatchy who has written some favorable articles for the defense bar highlighting the changes to Article 120.
    It would be good for the CA, would be good for the client, would be good for marketing, and would be ethical because there is no case anymore.  

  49. Charlie Gittins says:

    Not so fast . . .   Article 75 is not a discretionary provision of the Code — it requires restoration.  I believe Mandamus may be had for failure to comply with the law.  I am fighting this fight right now with Captain Stewart, as the USMC and SecNav foot drag on the restoration. 

    Uniform Code of Military Justice (UCMJ)


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    (a) Under such regulations as the President may prescribe, all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.

  50. Phil Cave says:

    I’ve been musing and thunkin, some of which probably need more exploration.
    If a senator or other politician with significant power over the military is calling upon the military to fire LtGen Franklin or take other actions, then is that senator potentially soliciting, encouraging, and counseling the commission of a crime.  I couldn’t quite (yet) figure out the federal code under 18 U.S. Code for something similar, and maybe there isn’t a general federal crime of soliciting a crime.  Although if two or more are soliciting in a similar fashion could that be stretched to conspiracy.
    So, let’s assume SecDef might act on what some might consider an abuse of power by Congress.
    What’s the crime.
    A violation of Article 37, UCMJ.
    Again without knowing too much about legislative privilege I thought perhaps the legislative privilege wouldn’t apply to committing a crime, if its a crime to solicit a crime such as Art. 37?  Maybe it’s broad enough, or perhaps its limited to a “defense” in slander suits.  
    So, we know SecDef has court-martial convening authority.  He recently used that to require sexual assault cases to be disposed of by a commander in at least the grade of O-6.  But, he’s not subject to the code.  Huuuuuum.  But, if it’s a federal crime to solicit the commission of an offense . . . . 
    So, SecDef gives orders to various commanders through the SecAF to give LtGen Franklin a GOMR, or take some other adverse action now what.
    Well, should that commander not be refusing an illegal order.  See Article 37.  Would this be a situation where a military judge deciding the legality of an order (see United States v. New), must as a matter of law find that an order in violation of Article 37 is an unlawful order.
    I’m sure I’m missing something important here, but that’s where I’m at on some of this.  And ultimately I’m sure clearer heads will at some point calm things down so this is a non-issue.

  51. Phil Cave says:

  52. John O'Connor says:

    “But, if I, as a defense counsel, went before the CA during clemency and got a charge set aside that I knew would be a political hot potato for the CA, I think I would feel a certain duty to come to the CA’s defense. First, so the next Convening Authority I go in front doesn’t think I am going to convince him to make a decision that will cause him many problems down the road.”
    Yes, exactly.  When I wasa TC, there were times when I had convicted somkeone (b y plea or contestyed and I wanted them to flip against their co-conspirators.  After trial, I would write a nice letter to the CA and try to get him clemency.  By reliably doing this, I didn’t need to promise the next guy anything.  His DC would say “this guy always looks out for accuseds who do the right thing and testify.”

  53. JAE says:

    k fischer nailed the “optics” problem.   All of the discussion about the CA’s discretion, whether he used it appropriately, whether it can be appealed, etc., unfortunately misses the forest for the trees.  Rightly or wrongly, there has been (as CAAFlog readers are well aware) a serious movement afoot on Capitol Hill for several years of folks who are convinced that the DOD does not take sexual assaults seriously.   This plays right into that narrative. 
    I was also interested to note that the panel in this case consisted of three O-6’s and two O-5’s who — not inconsequentially — saw all of the witnesses, etc., in person, as opposed to reading the transcripts as the CA (probably) did.  Seems odd to dismiss such a senior panel’s verdict out of hand. 
    I’ve got a fair bit of MJ experience, and have actually never seen a CA completely flip a verdict like this.   I’m sure with the wealth of experience on this site, others have.  I would love to hear about those cases. 

  54. DMW says:

    This opens a whole new can of worms, but this case validates the wisdom imparted to me by a mentor as a defense counsel many-many years ago: “Never, ever, have a mid-grade to senior officer client exercise his/her right to remain silent. The panel members will mouth all the right words about the right to remain silent in order to serve, but will definitely expect a quasi-peer to get on the stand and honorably explain his/her version of events. Failure to do so means that they can’t honestly deny the charges, and the “he said/she said” becomes a “she said and he remained silent” (and in this case hid behind his wife’s quasi-believable explanation of events and subjected her to withering cross without exhibiting the honor or courage to back up her story). End result – excellent defense lawyering and conviction overturned, but the client makes national headlines as the next OJ, loses his honor and career, and the integrity of the military justice system is damaged. Hope he and his wife can live on O-5 (or O-4) retirement pay. Nobody’s going to hire him. Not privy to the evidence, or what his counsel feared would come out on cross, but if he did what “she said” he can’t complain, and if he didn’t he should have said so at trial.

  55. k fischer says:

    I think your analysis applies to any Servicemember who sits in the accused’s chair.  I only had one Lt. who did not take the stand get acquitted.  He was accused of bringing a Beretta AR 70 back from a deployment, not of sexual assault, but it was a he said/he said kind of case.  The panel president carried the day by advocating reasonable doubt, or so a little birdy told me…..
    Rarely, have I seen a TC who can really cross examine my client effectively.  It usually boils down to a base liar liar pants on fire argumentative type cross.  In this case, though, you had a former military judge as the TC.  Perhaps that was a concern for defense counsel.  And, apparently, they played his CID interview in which he said he was in his bed, so did he really need to get on the stand again?  But, I agree, his failure to take the stand probably counted against him with the panel.