Some of the CAAFlog commentariat has been on the road, so we’ll be doing a bit of catching up over the next couple of days.  Here’s a link to a McClatchy article by Michael Doyle about unlawful command influence in military sexual assault cases.

17 Responses to “McClatchy article on UCI in military Article 120 cases”

  1. SFC V says:

    When you have the president and SECDEF, the two most senior convening authorities, making comments about how offenders should be dealt with it is very problematic.  Someone needs to explain the ramifications of any statements they make on the issue because they could screw up a whole bunch of cases. 
     
    It is one thing to say words to the effect of “I expect leaders to take sexual assault seriously, take a proactive role in preventing it from happening, and handle every reported case in a professional and expiditious manner.” But it is quite another to say “We must court martial, fire, discharge, and punish offenders.” 
     
     

  2. Christopher Mathews says:

    McClatchy’s slant on military justice has been clear for some time: they think we ought to prosecute fewer sex offenses than we do.
    Re: comments by the President and SECDEF – The first clause of Article 37(a) provides that no person convening a court-martial may “censure, reprimand, or admonish” the personnel “thereof” with respect to the “the conduct of the proceedings.”  That appears to mean a convening authority cannot chastise a person for a trial the CA convenes.  So far as I know, neither the President nor Secretary Hagel have convened any courts-martial.
    The second clause says that “no person subject to this chapter” may attempt to coerce “or, by any unauthorized means, influence” the actions of a court-martial or tribunal or a reviewing authority.  Neither the President nor SECDEF appear to be subject to 10 USC Chapter 47, nor is it clear that speaking out as they have would be “unauthorized.”
    I think you can (and should) expect substantial voir dire on the question of whether the NCA’s comments have so influenced the military judge or prospective members of a court-martial that an accused charged with sex offenses cannot receive a fair trial.  I don’t think UCI is a player.

  3. stewie says:

    Yeah, I find it extremely hard to believe that the President saying what he said has a remote chance of making panel members in an individual case vote any differently.  And while technically “no punishment” must legally be considered for someone convicted of a sex offense, the practical universe of when no punishment is an appropriate sentence for such an offense is significantly tiny to not be concerned by the President’s comments either.

  4. Dwight Sullivan says:

    I disagree with my learned colleagues concerning the danger of what the President said to a fair court-martial process.  He recommended a particular sentence:  dishonorable discharge.  When the Commander in Chief says that a particular sentence should be adjudged, I fear for the consequences not only on members’ sentencing (I don’t think it’s a real issue in judge-alone sentencing) but also on convening authorities’ actions.

    Regarding the question of whether a comment by a senior civilian official in the chain of command can constitute UCI, that’s one of the issues currently pending before CAAF in Hutchins.

  5. huskerjag says:

    I completely agree with you Dwight. This has only been made worse with CA’s being tarred and feathered in the halls of Congress (or worse yet, before Congressional hearings). However, I fear that the Rubicon was crossed once Sen McCaskill held up a GO’s promotion for granting clemency in a sex assault case. While I understand the need to hold leaders “accountable” for creating an environment where sexual harassment or sexual assault is condoned, this kind of political assault on officers carrying out their lawful discretionary duties creates a far more dangerous UCI problem. What other discretionary functions are safe? Court martial panel membership? Military judges who unlike Federal judges aren’t appointed for life? The most sinister part of the problem is that this terrible form of unlawful influence is far harder to prove. How does one prove that a CA refused a convicted servicemember clemency because he or she feared being hauled before Congress or have their chances for promotion run aground like a destroyer on a reef. Which CA will ever admit to that, even if it is true? And what of panel members or judges? Which of them would ever admit to harboring a now legitimate concern that someday, some politician would hold them “accountable” for service on a panel that lead to an acquittal by scorching their careers and their good names- even if asked under oath during voir dire? Worse yet, what more chilling effect will this have to a senior NCO or officer who is asked to testify for an accused, especially during sentencing- knowing that the record of their testimony might be scrutinized by a member of Congress or their staff? Many, if not most, will simply pass or ask not to be called to testify. They will simply allow the sinking ship go down- and so too will military justice for servicemembers accused of sexual assault?

  6. rob klant says:

    I’m with huskerjag and Mr. Sullvan:  how could the most discretionary of all a convening authority’s acts — referral and post-trial action — not be influenced by the recent comments of miltary and civilian leadership?
    Yet, I must also take into consideration Judge Mathews’ post:  as he asserts, correctly in my view, the attempts of members of Congress to pervert the course of military justice are beyond the reach of Article 37, UCMJ.
    Perhaps this should be framed, instead of UCI, as an “accuser” issue:  which convening authority in these times does not have a personal interest in the discretionary decisions he/she makes and their consequences?

  7. SFC V says:

    I think the biggest effect will be on CA actions.  If the CA has any hope for another star better not do anything that might hold that up even if it be the right thing.
     
     

  8. rob klant says:

    And, isn’t that a prima facie case that the CA is an “accuser”?  (See Arts. 13, 22(b), 23(b), 37)
     

  9. Christopher Mathews says:

    This is one of the dilemmas that crops up when you tell the world you have a zero tolerance policy but you really don’t.

  10. K Fischer says:

    I worry that all this UCI talk is all the more reason for the prosecution of sexual assault offenses to be taken out of the hands of Commanders.     Of course, that would require a little more sophisticated understanding than what our Congressional Reps have exhibited through their statements to the press and during their hearings.  Once they figure out that commanders can’t order a Servicemember to be dishonorably discharged because of UCI, then that will be their rallying cry for creating whatever bureuacracy to prosecute SA cases in the military.

  11. stewie says:

    The vast majority of panel members are very busy people.  They aren’t going to fixate or remember that the President said much of anything other than sexual assault bad.  They aren’t going to convict based on it, and I don’t think they will sentence based on it.

  12. AF CMJ says:

    Agreed Stewie, very few members are paying attention to specific pronouncements reported in the press beyond seeing a headline; what they are paying attention to is actual blowback. I briefed SECDEF’s Article 60 proposal at SOD a couple of weeks ago and came away very confident that no one had heard of the issue or understood. On the other hand, everyone was familiar with the Wilkerson case generally and that it was causing Lt Gen Franklin difficulty. Though it’s unfortunate POTUS made the comments for us to be dealing with in voir dire, I think it’s the congressional acts that are FAR more harmful. I guarantee every GCM convening authority has heard about Lt Gen Helms. It may not be UCI, but it absolutely poses the same danger. 

  13. Babu says:

    See, e.g., United States v. Simpson, 58 M.J. 368, 377 (C.A.A.F. 2003)(“In that regard, we note that senior officials and the attorneys who advise them concerning the content of public statements should consider not only the perceived needs of the moment, but also the potential impact of specific comments on the fairness of any subsequent proceedings in terms of the prohibition against unlawful command influence.”); United States v. Hagen, 25 M.J. 78, 87 (C.M.A. 1987)(Sullivan, J. concurring)(“Command influence is a threat to justice and fairness in the operation of the code. This evil can emanate from within or outside the system. . . . A typical general or flag officer exercising convening-authority power will almost always have superiors, higher-ranking military officers or civilians in policy positions. These superiors as well must refrain from sending signals down the chain of command as to expected results in a criminal case. . . . It is not only unprofessional but a fraud on the system for a superior to “send the word” down to a convening authority as to a desired result in a criminal case which will please the leadership of our armed forces.”); United States v. Fowle, 7 U.S.C.M.A. 349, 351-52 (1956)(“Although we are here faced with a secretary rather than a command directive, the former, emanating from the Secretary of a service, would be even more persuasive and bring more pressure to bear upon the members of the court than the latter type directive. . . It was against this sort of command influence that the Code was initially directed. Reasonable men must conclude that once the Secretary of a service enters into the restricted arena of the courtroom, whether the members of the court are conscious thereof or not, he is bound to exert some influence over them. A trial must be kept free from substantial doubt with respect to fairness and impartiality.”)
     
    Note: The Judge Sullivan “concurrence” in Hagen was joined by the other 2 judges on the Court at the time.
    Disclaimer:  I argued the issue of civilian UCI to CAAF this past Fall in Hutchins, where I cited to Simpson and Hagen.  Judge Effron brought up Fowle at oral argument.  

  14. k fischer says:

    CM, 
     
    How can a “zero tolerance” policy by Commanders and Article 37 co-exist?  It seems that our legislators in the House want a “zero tolerance” policy akin to what the POTUS described:
    “The bottom line is, I have no tolerance for this,” Obama told reporters. “If we find out somebody’s engaging in this stuff, they’ve got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged — period.”
     
    Well, when the Marine Commandant says essentially the same thing…well, perhaps a little more over the top….then he hits the nail on the head with how his comments will be viewed:
     
    “My lawyers don’t want me to talk about this, but I’m going to anyway,” he said May 23 at California’s Camp Pendleton, according to a defense legal filing. “The defense lawyers love when I talk about this, because then they can throw me under the bus later on and complain about unlawful command influence.”
     

    So, Commanders cannot legally be tough on sexual assault the same way the POTUS can and state a similar zero tolerance policy because they will run afoul of the UCMJ?  Isn’t Article 37 of the UCMJ just another way that Commanders are permitted to protect rapists.  On the one hand, you say that Congress must leave the UCMJ alone because Commanders are the best suited to enforce good order and discipline, but when the Commander merely talks tough regarding sexual assaults in his or her unit, then the Commander will be hauled into the court-martial by the rapist’s attorney and accused of violating Article 37 of the UCMJ?
     
    No wonder Commanders are so ineffective at prosecuting rapists in their ranks.  No wonder 26,000 victims choose not to report the crime when the Commander cannot even say a word in support of a rape survivor out of fear that they will somehow ruin a conviction.  So, why not relieve them of this burden, and place it in the hands of legally trained sexual assault attorneys, so that the Commanders who are in charge of those fighting this Nation’s wars can focus on sexual assault prevention?
     

  15. k fischer says:

    (When I wrote the above post @0921, I meant to use the moniker “McCaskpeierillibrand.”)

  16. AF_DC says:

    k fischer, POTUS and the MC aren’t stating a zero tolerance policy — they’re directing a result. Zero tolerance should mean prosecuting every instance of apparent bona fide sexual assault (and not, e.g., the cases where the alleged victim changes his mind halfway through the heretofore consensual act but doesn’t express that change to the alleged perpetrator). Zero tolerance shold not mean making sure that everyone accused of sexual assault gets convicted. More saliently, it should not mean making sure that everyone convicted of sexual assault gets a punitive discharge. That’s why we have sentencing cases — because it’s important for a panel or a judge to decide how much the offense is worth in each individual case, free from directives by the CIC or anyone else to punitively discharge or confine an accused.

  17. k fischer says:

    AF_DC, 
     
    I see your point, and I agree with you.  I’ve filed a few UCI motions in my day and understand the difference between zero tolerance and UCI.
     
    But, what do you think the Congressional Representatives who control promotions, DoD Budgets, and amendments to the UCMJ think “zero tolerance” means?  They want everyone who gets convicted of sexual assault to get a dishonorable discharge or dismissal.  Let’s assume this bill doesn’t pass, so, when TJAG’s of the respective branches of the Armed Services explain that Commanders cannot ensure a punitive discharge or a conviction because of UCI, then isn’t there a conflict ?  Heck, if the Commandant of the Marine Corps can’t tell his Commanders to be tough on sexual assault wtihout being accused of UCI, then how do we expect an O6?  So, if I am a Congressional Representative how do I fix this?  Either get rid of Article 37 or give the authority to prosecute sexual offenses to an independent prosecutor’s office, give them the authority to convene a court martial, set up a hotline for victims to call and make a complaint outside the chain of command, so that the 26,000 estimated victims who don’t report have no excuse for failing to report.