Here’s a Balkinization post by Yale Law School Professor Gene Fidell on the congressional response to Lieutenant General Franklin disapproving the conviction in United States v. LTC Wilkerson.

9 Responses to “Professor Fidell on the Wilkerson case’s aftermath”

  1. Biff says:

    I agree with most of what Professor Fidell says except the notion that the reasons behind LTG Franklin’s decision are off limits because the statute does not require their disclosure.  While the reasons behind a convening authority’s exercise of clemency need not be disclosed, that’s a far cry from saying they must be kept secret — as if they were grand jury proceedings.
    LTG Wilkerson should be called before Congress, and he should be questioned about his decision.  He can then decide whether or not to disclose the reasons why he took this step.  That’s simply part of Congress’s oversight authority.  If that chills future commanders from exercising clemency, so be it.  A little chill in the air before overturning a rape conviction against the advice of counsel is probably a good thing.  

  2. Tami says:

    A chilling effect is not good for those who are wrongly convicted.

  3. Ed says:

    You mean LTG Franklin even though it would be fascinating to listen  to LTC Wilkerson

  4. Biff says:

    Tami, if only CA’s exercised clemency in those cases, I’d agree with you.  I’ve been out of the military justice system for quite some time, but I don’t remember ever seeing of a case where the CA granted a full reprieve for wrongful conviction.  It’s those cases, it seems, where CA’s are willing to let the appellate process run its course.

  5. Tami says:

    Biff, I’ve never seen a CA give a full reprieve either.  But there are CAs who do give clemency, and there are CAs who disapprove convictions and reduce sentences to remedy legal errors.  A conviction gained on insufficient evidence is a legal error.  I saw a CA disapprove a conviction and approve an LIO based on insufficient evidence, and this was from a judge alone trial!  Speier’s legislation proposes to do away with all of that.  A little chill is not “probably a good thing.”

  6. John M. Economidy says:

    In my 39-years as a lawyer, I have seen convening authorities set aside cases on review a number of times.
    When he was CinCPACAF before he became Chief of Staff of the Air Force, Tony McPeak would call up
    his SJA at 10 p.m. on a Saturday night and ask his SJA what a legal term or other procedure in the trial
    transcript meant.  Then he would act within his discretion.  Major General Tom Sadler, Commander of
    Twenty-First Air Force when I was chief of military justice also acted similarly in the early 1980s.
    These were first rate commanders who took their role as a CA very seriously.  I have no doubt that
    Lt. General Franklin act similarly in good conscience and morality in the Lt. Colonel Wilkerson case.

  7. k fischer says:

    Professor Fidell writes:
    What are the members of courts-martial — our uniformed jurors — to think if they know that a commander can set aside the verdict they have painstakingly rendered after hearing the evidence, perhaps asking questions of their own (as military law permits), applying the military judge’s binding legal instructions, and deliberating in secret?

    It might be a little counter-intuitive (I just threw up in my mouth a little bit when I typed that phrase), but this thought could lead to an opposite result.  Putting myself in the shoes of the atypical panel member who knows the CA can reverse my conviction and sentence, I think that I would be more apt to convict, rather than acquit because I’ll just leave it up to the old man.  I mean, he is the one who signs my OER, and I’ll be damned if I’m going to risk my career suffering because I didn’t convict and dismiss an officer who the CA referred to me to get the job done and we know in the very least looks over bathroom walls to stare at subordinate’s wives.  If the CA doesn’t think that there should be a conviction, then he can dismiss the charges. (I wouldn’t decide this way, but I would imagine that panel members like this exist and should never be permitted to sit on a panel).
    However, if you take away the emergency parachute possessed by the CA to dismiss the charges, then maybe reasonable doubt becomes more reasonable to this panel member in a he said, she said case with no physical evidence.
    I am more interested in Beth Hillman’s opinion that the UCMJ discretion should be taken away from Commanders:  
    I think it’s time to take this problem away from our military leaders and put it in the hands of independent prosecutors and investigators who can manage this without worrying about the impact or the reputation of the military[.]”

  8. Ken Martin says:

    I share the concern of K Fischer. Anyone who practices in military defense should be concerned. A high vis case like this may and probably will be in the back of the minds of all members. Some members now will just send it up to the boss. Some won’t they will call it like they see it but some now know the easy way out.

  9. Terminal Velocity says:

    The purpose of the armed forces is to fight and win wars.  For centuries we have recognized that in order to do that commanders must have the authority to enforce good order and discipiline, hence our commander centric system.  I have spoken with coalition JAGs who come from systems where discipline has been “civilianized” and they all believe that it has undermined military effectiveness.  While it is not a statistically significant sample, the concerns they expressed seem to be very valid.   If we can trust our commandres to make life or detah decisions on the battlefield, we have to be able to trust them to be convening authorities.  It is not surprising that the politicians banging the drum to remove CA powers from commanders have no military experience.