During the afternoon panel of the SASC military personnel subcommittee dealing with sexual assault in the military, Senator Lindsey Graham (R-S.C.) reviewed the number of instances in which CAs have set aside findings of guilty.  (It starts at 41:33 of this link.)   In the United States Marine Corps from 2010-2012, there were 1,768 SPCM and GCM cases resulting in convictions and in only 7 cases (0.4%) did the CA disapprove the findings of guilty, none in a sexual assault case.  In the Air Force, over the last 5 years, convening authorities set aside findings in 40 cases out of 3,713 cases (1.1%) — 5 in sexual assault cases.  The Navy doesn’t have a system for tracking convening authorities’ Article 60 dispositions, but a survey found only 1 instance of a CA setting aside findings; that was in a sexual assault case.  In the Army, since 2008, out of 4,603 cases with convictions, the convening authority set aside the findings in 68 (1.48%), none of which were sexual assault cases.  In the Coast Guard, out of more than 200 cases convened, the convening authority set aside a finding of guilty to at least 1 specification in 3 cases.

9 Responses to “Some Article 60(c) statistics”

  1. AF CMJ says:

    Being that I am vastly less experienced than most of the other posters here, I’ll ask the question: Absent the concerns about PTAs (which I think a revised Art 60 could be drafted around), what do these stats mean? Do they support the notion that CA power to dismiss findings is used infrequently enough to suggest its not abused for the purposes Congress seems to think it is, it’s used infrequently enough that its unnecessary with our existing “robust appellate processes,” or is there some other conclusion to draw?

  2. Phil Cave says:

    Thanks My Liege.
    I will go out on a limb and maintain my prediction from yesterday.  There is no problem, just the optics of a specific case.  I did err in channeling Judge Cox on the “800ib gorilla.”  He was referring to the CCA’s when he said that.   United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993), citing to United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)(“A clearer carte blanche to do justice would be difficult to express” as describing the CMR Article 66 powers). 

  3. Eckert says:

    Col Sullivan, sir, thank you for posting this.  It demonstrates that some politicians rarely let facts stand in the way of their position. 

  4. Christopher Mathews says:

    AF CMJ —
    It can be used to support any of the notions you suggest. 
    I think it will be used to argue that the exercise of the CA’s Article 60 power in the Wilkerson case, to the extent it represents a miscarriage of justice at all, is nonetheless such an outlier that it doesn’t represent a problem requiring a systemic fix.  I think it will also be used to argue that because the CA’s power is so rarely exercised, modifying or curtailing it — or even transferring it to the CCAs through a more robust exercise of Article 66, contra Nerad — would have a negligible impact on the system overall.

  5. Anon says:

    This statistic is lacking one vital component (rank of the Accused) and a minor component (location, i.e., deployed, CONUS, OCONUS).  Yes, the Wilkerson case is being used to suggest problems with the prosecution of sex assaults generally.  But one of the bigger (better?) concerns was that one F-16 pilot was protecting another and, more broadly, that one officer was protecting another.  (A concern you hear almost any time you talk to any enlisted person about MJ.)  This statistic doesn’t address that at all.
    I’m honestly not convinced that Wilkerson is an outlier any more than any O-5 getting convicted for a sex assault is an outlier.  Surely everyone here can immediately recall a case they were involved in where a SNCO or FGO got a helluva break that a more junior person (or a civilian) wouldn’t have received.  You’ve seen NJP for an E-8 who sexually assaulted multiple O-1/2s in public.  You’ve seen “we’ve talked and it’s settled’ used to resolve drunken driving, indecent exposure, and sometimes even more serious allegations against officers.  And you can probably recall a case (other than Wilkerson) where a senior officer took unilateral and final action to stop an action against an officer, overturn a verdict, etc.  So, it might be 2% of all convictions where a FGO is convicted of a sex assault and if half of those are reversed… well, the 1% stat goes from good to bad for the military in a hurry.
    Even if that were the case, all of those things could be excusable in the right circumstances: remote locations, mission necessity, etc.  But, we have hundreds of thousands of troops who work in office buildings, sit at desks, and generally are discernable from civilians only by their propensity for acronyms and uniforms.  Truth be told, most officers are not in mission-critical positions.  Sure, they’re nice to have.  But, if pressed, they could be replaced quickly with minor mission impact.
    I know we’re limited by the transcript, but I want to know ranks and locations for these cases.  Because while Wilkerson may be an outlier, I suspect that a little digging would reveal that it’s not nearly as far afield as it might appear.

  6. Ama Goste says:

    Another fact I’d like is whether the convictions set aside were from cases that started as sexual assault cases but didn’t exactly end up as such.  For example, a number of years ago, I had a convening authority completely wipe out my client’s conviction in a case that was charged as rape, adultery, and other crimes.  My client was convicted of attempted adultery.  (Interestingly enough, the same convening authority declined to grant clemency for another client whose rape and indecent assault charges resulted in a conviction for consensual sodomy and indecent acts for the familiar scenario of a third person asleep in a dorm room.)  Do these cases count as sexual assault cases for purposes of these statistics? 
    I wonder what these statistics say about differences, if any, among the services, when it comes to granting clemency in general or, more specifically, in sexual assault cases.  Does this mean USAF convening authorities are more willing to exercise clemency?  Does this mean the USAF takes more “iffy” cases  to court-martial?  More persuasive defense counsel?

  7. SPV says:

    The link does not present statistics at 41:33.  Can you provide the correct time in the video.

  8. Dwight Sullivan says:

    SPV, click on the link for the afternoon panel, then it’s at 41:33.  Unfortunately, the web address for the afternoon panel is the same as for the morning panel, so I can’t give you a one-click solution.

  9. SPV says:

    Thank you, I also found the statistics on the transcript for the hearing at page 51 of the following link: