Here’s an interesting post on 31(b)log about Senator McCaskill’s reaction to Lieutenant General Franklin setting aside the conviction in Lieutenant Colonel Wilkerson’s case. Be sure to read LtCol Winklosky’s insightful points in his comment to the post.

18 Responses to “31(b)log on threat to Article 60(c)”

  1. stewie says:

    If we got rid of Article 60 in its entirety I would assume:
    a. you’d go straight from authentication to the Service Court, which would speed up post-trial/appellate processing since the only thing the SJA would be responsible for would be compiling a verbatim record.
    b. you would either simply do away with plea bargaining (all GPs would be naked), or the law I supposed could be modified to either bind the MJ to an agreed upon deal OR make such a deal something the MJ could consider but reject, which I believe is how it is in the civilian world?
    I’m not sure, given the rarity of this situation, that getting rid of clemency would be all that Earth-shattering.  I get the arguments for it, and not advocating for it to go away, but it’s hard to assign a ton of necessity to something that happens once in a blue moon.

  2. Random Thoughts says:

    Is it really true that clemency rarely happens?  Clemency in the form of total disapproval of the findings is surely rare, but modifying some of the findings or some of the sentence happens with somewhat regularity. 

  3. stewie says:

    not in my experience, but ymmv.  My sample size is fairly sizable but nowhere near many of the highly experienced folks here obviously.

  4. k fischer says:

    While I can understand Senator McCaskill’s ire and questions regarding the Wilkerson court martial, I cannot understand why she would question a CENTCOM commander about the dismissal of charges in an EUCOM court martial during a hearing regarding funding for Afghanistan.  If she and her colleagues are so serious about getting to the bottom of this, then they need to call the Lt. Gen. Franklin or at least the EUCOM commander onto the carpet.  
    Squawking like a seagull to General Mattis during a hearing that has nothing to do with sexual assault in the military accomplishes nothing.  This is yet another reason why Lt. Gen. Franklin should have put something a little more out there regarding his reasoning, so Senators like MacCaskill can’t showboat in front of a person who has nothing to do with the process in that court martial.
    Of course, perhaps she knows something that we don’t.  Perhaps, she chose that forum because she knew Mattis could not counter her with any facts about the case because Aviano is not within his chain of command.  What if the answer is that during a command and staff meeting the 3 Colonels on that panel volunteered that they had some serious reservations about Wilkerson’s guilt, but they felt duty bound because the Franklin sent it to a Court Martial?  
    And, if Congress amends Article 60(c), then I hope they don’t use the same 100 monkeys with typewriters they used to draft the amendments to Article 120.  (Anybody see the irony of the prosecutor in US v. Wilkerson using Article 120 to get a conviction when, as a military judge in US v. Payton, he said he would expect that 100 monkeys with typewriters would come up with something like the current Article 120?  There’s only one Col. Don Christenson in the Air Force, right?)

  5. Tami says:

    CAs grant both clemency and relief for legal error.  Granting clemency by deferring/waiving adjudged and/or automatic forfeitures is very common when the accused has family, as the money is channeled to the family.  Sometimes they reduce the amount of confinement for clemency reasons.  More frequently they will reduce confinement in response to a complaint about dilatory post-trial processing.  That way, if the issue is raised on appeal, appellate courts will give more deference to the CA’s decision, since he already remedied the error, and the appellate court is less likely to grant relief.
    I have also seen a CA disapprove a finding of guilt for an indecent assault, and approve finding of guilt to the LIO of assault consummated by a battery, and he also reduced the confinement some to adjust for that LIO.  The accused, an enlisted man, touched a female officer’s knee.  Since the government couldn’t rationalize how touching a knee was “indecent,” the CA did the right thing by correcting it himself, thus eliminating an appellate issue.
    In the Wilkerson case, if the CA’s reason for setting the verdict aside was due to factual insufficiency, then the CA’s action is based on correcting legal error, not granting clemency.  But, doing away with the CA’s Article 60 authority is earth-shattering, and if Congress does away with it, that will also affect other laws that give similar authority, including Articles 57-59, UCMJ.
    I see Article 66 next on the chopping block, then Article 67, then Article 69….

  6. stewie says:

    you could easily retain the ability to set aside  or defer forfeitures for family/spouses and otherwise get rid of clemency.  I guess I don’t see it as earth-shattering.  Usually the reduction in confinement is a month or so, and if they don’t do it, then ACCA does it, six of one half dozen of the other.  I’m not anti-clemency, but all it would do is put SMs in the same place as civilians post-sentencing, no better, no worse.

  7. Tami says:

    No, it wouldn’t put SMs in the same position as civilians post-sentencing.  In the civilian sector, judges have the power to issue a directed verdict after a jury convicts the defendant.  Military judges don’t have that authority.  If Congress takes the power to issue a directed verdict away from convening authorities, then SMs who are “wrongly” convicted are pretty much screwed until they get a decision from their service’s court of criminal appeals, which we all know takes, on average, 2-3 years.  For someone with a short amount of jail time, then they’re really screwed, because their life is on hold until they get that decision, since they don’t have a DD214 so they can’t really get a job, not getting paid by the military.
    Really bothers me that Congress is in charge of making the laws, but they don’t understand the laws they make, or the ripple effect of a poorly created law, created by a knee-jerk reaction.  Like Pelosi said, “we have to pass this law so we can see what’s in it.”

  8. Ex TC says:

    It would seem that Congress could create a system where a CA is not allowed to overturn a member’s verdict of guilt but allows them to modify an adjudged sentence. This would still allow financial clemency to the members family, which is certainly the most common clemency, and even disapproving confinement in total, discharge et al….  This is hardly the sky is falling and heading towards removing all appellate review.
    What I think would be a disaster would be to remove CA’s ability in limited cases, such as sexual assaults.  It should be all or nothing.  I personally prefer the current system, it seems to work just fine if you don’t look through a biased political prism at it. 
    But isn’t the UCMJ designed to enforce good order and discipline in the ranks vice be a federal criminal justice system lite?  This seems to be lost on the political crowd.  I suspect that the AF general is in for rough seas ahead but his decision in one case should not overturn a system that has been in place 50 plus years.

  9. Lieber says:

    I’ve never really bought the “good order and discipline” rationale for a CA having complete discretion.  It’s all very well to say that a GCMCA is best equipped to determine what’s necessary for good order and discipline in their unit, but what they are not equipped to determine are the 2nd and 3rd order effects on the service (or indeed the DoD) as a whole.  And we’re seeing that in this case.  It’s all very well for a CA to make a determination that not prosecuting a crime (for example) is necessary for good order and discipline within a unit, but what if it’s horrible for the service as a whole?  Who considers that? 

  10. Lieber says:

    And would the sky really fall if CAs only had full discretion with military-specific offenses while “real” crimes were prosecuted at the discretion of SJAs?  I’ve known a fair amount of GCMCAs who would love to get out of the Justice business and stick with the Military Justice business.  Other countries manage to pull this off.

  11. stewie says:

    ok then give MJs, who are attorneys, who have seen the witnesses and the entire case, the power to do a directed verdict.
    I mean to me the bottom line is that I just dont view CA clemency as something that is sacrosanct and can’t be replaced by something else.  Then again, I’m not passionate about ending it either.

  12. k fischer says:

    Here’s another case Sen. MacCaskill can put into her toolkit regarding Jeremy Goulet, a person suspected of committing two rapes in the military, who got out and allegedly attempted to rape a girl as a civilian and shot two Santa Cruz police officers.  Just think if the military had allowed civilians to prosecute him, then he would have been in Leavenworth, and those two police officers would be alive today. (I typed that sardonically).  But, isn’t that what Panetta is really saying?

  13. k fischer says:

    Here’s another case Sen. MacCaskill can put into her toolkit regarding Jeremy Goulet, a person suspected of committing two rapes in the military, who got out and allegedly attempted to rape a girl as a civilian and shot two Santa Cruz police officers.

  14. Atticus says:

    There have been several observations raising the important question of whether we should continue down the road of treating (with lip service anyway) courts-martial and military justice the same as criminal trials in state or federal court.  I for one think we speak out of both sides of our proverbial mouths.  I think if we are going to continue, we need to bring military justice squarely in line with criminal trials.  Just a few suggestions: Let’s go to unanimous verdicts, appeal on application and within a certain specified time limit, let’s have a directed verdict rule for judges like FRCP 29 and scrap factual sufficiency review on appeal (you give the CCAs the power to review a denial of a post-trial directed verdict motion-just like the federal circuits have now), and let’s get rid of the service CCAs and go to a single, all-civilian judge CCA, like CAAF).  Otherwise, let’s stop pretending we know what to do with common-law felonies and go back to only prosecuting uniquely military offenses.  If we do that, we get rid of all this political interference.  We give the states concurrent jurisdiction on all installations (MCAS Miramar – for one – has a setup like this and it works very well) and they or the feds can decide who prosecutes felonies.  (I also predict nobody will like this because it would result in the end of this blog and put a lot of people out of business.)  

  15. stewie says:

    I don’t think it has to be either/or.  I don’t think anyone believes that MJ as currently constituted is 100 percent perfect and cannot be bettered or tweaked a bit here or there.  I don’t know that it’s clemency, or directed verdicts, or CCA review authority necessarily, but those are the kinds of things that can be looked at, and perhaps a small tweak in one of those areas will protect from a much larger tweak later.

  16. John O'Connor says:

    I have to say, I think taking away or restricting a CA’s power to disapprove findings of guilt or to give sentence clemency is insane.  We already vest the CAs with a far greater power — the power to decide whether to go forward with charges at all (yes, I know declining prosecution doesn’t bar prosecution by another, while disapproving findings does, but let’s be serious).
    There’s nothing wrong with the notion that the CA should take the heat for his clemency decisions, but I can’t imagine a military justice system that deprives a CA of the power to act to disapprove findings or reduce sentences (isn’t that how Lee Marvin got the Dirty Dozen to sign up?).  

  17. Ex TC says:

    If we say that courts-martials should be akin to jury trials with unanimous verdicts, Rule 29 motions, post trial acquittals by a judge , should we also have all sentencing by a judge? Members are a tool to enforce good order and discipline are they not.  What about mandatory minimums ? Why does the soldier who distributes child porn get less than five years while the defendant in fed court starts at five years? Lots of fed court is pro Govt also. 

  18. stewie says:

    I dont think a parade of horribles is compelling here.  You can get rid or change some things, and keep other things.
    And I can imagine a military justice system with CA clemency quite easily and I don’t think it would look all that different from what we have now.  I dont think it would look that different if we went to unanimous verdicts.  Mandatory minimums certainly would make it look different, as would mandated MJ sentencing.  Some things can be done without changing the nature that much, other things would change it a lot.