An interesting article on the importance of the commander’s ability to overturn court-martial findings
I just finished reading a fascinating article by Colonel Andrew Williams, USAF, about the need to safeguard the commander’s authority to review the findings of a court-martial. The article is available on SSRN at this link. It explains that the factual sufficiency reviews performed by commanders and the courts of criminal appeals are critical safeguards against the structural flaws in the military justice system; particularly the fact that a court-martial deprives the accused of his right to trial by jury.
The article is lengthy, but well worth your time. Colonel Williams discusses the features of a jury that ensure reliability (size, unanimity, random assignment, etc.) but that are not features of a court-martial panel. He explains how this can lead to inaccurate results that require correction by reviewing authorities with the power to set aside the conviction. He also explains why it is not enough that just the courts of criminal appeals have this power, in part because not all cases are reviewed by a CCA and in part because factual sufficiency reviews by the appellate courts are themselves often erroneous (he cites numerous examples on pages 28-29).
Colonel Williams concludes his article with two recommendations: Congress should consider limiting courts-martial to the trial of disciplinary infractions, with general crimes tried in federal and state courts (like the policy change I proposed in this post). Alternatively, Congress should give court-martial panels the features of a common-law jury, by increasing them to twelve members that are randomly selected from the military community without regard to rank or position, and requiring unanimity to convict.