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.

11 Responses to “An interesting article on the importance of the commander’s ability to overturn court-martial findings”

  1. stewie says:

    My thoughts:
    1. Meaningful clemency happens so rarely that the idea of it being a necessity seems more theoretical than practical.  Appellate factual sufficiency reviews may be flawed, but it’s arguable they are less rare than meaningful clemency (which is also flawed).
    2. What about Art 25? Don’t we get fact-finders that are smarter than the average “not smart enough to get out of jury duty” civilian juries?  Do we want a brand new E2 sitting on a panel just because he was randomly chosen and made it through voir dire? Is that preferable? Do we want juniors judging seniors?
    3. How would the civilian system be better other than silencing the critics of the MJ system? Would it be faster? No, it would be much slower.  Would it be more likely to benefit the accused? Not necessarily, pros and cons there.  Would it be better for victims? Again, not necessarily.
    This all just smacks to me of civilian = better (for everyone) without a deeper analysis of whether that’s really the case.  How does good order and discipline get affected when a Soldier’s trial takes 18 months, and then he’s acquitted? Or convicted for that matter.  Why would civilian prosecutors take rape cases that we take that will lower their conviction rates? What do we do when the civilians say no, and we’ve given up the process (or do so few that we have little experience).  And of course, how do we deal with overseas/combat when we’ve given it up and only have a handful of trained folks left?

  2. Mike says:

    there is not ever much discussion or consideration given to the victims in articles like this one.  A savvy victim might suggest that we also give commanders the authority to disapprove acquittals.  We all agree that a panel in not a jury.  So why are we only allowing commanders to review convictions?  

  3. ARMYTC says:

    I said before and I say again, civilian courts won’t take these cases to trial in any meaningful way. You can forget entirely about sex assault prosecutions. “Oh, the victim was drunk? Yeah…we can’t take that, the last time we did Judge X got mad and he still brings it up and still warns us not to do that again.”

  4. Guru Dude says:

    Sex assaults need to be given to civilian authorities, from invetsigation to disposition.  That way, the weak allegations are never charged and the strong ones go before a civilain jury; no worries about UCI or military member biases, etc.   And you do not get ridiculous results like rape convictions with NJP punishments.   This would remove the UCI issues currently in the news (the President and CMC’s comments)  and and remove the problems Congress is focused on. 

  5. k fischer says:

    Here is an article about Gen. Helm’s nomination hold that offers a different perspective on a Commander’s authority to order clemency.
    In light of today’s announcement that females will be permitted to be Rangers and SEALS, I offer one of the comments to the article above:
    “There’s a little bit of irony in the fact that women want combat duty but seem unable to protect themselves.”

  6. stewie says:

    “There’s a little bit of irony in the fact that women want combat duty but seem unable to protect themselves.”
    Why is that ironic? There are men who are sexually assaulted as well. 

  7. k fischer says:

    When I hit ‘post comment’ I thought to myself, “Self, I bet Stewie will respond with the fact that males are seuxaly assaulted in the miltiary.”  
    That comment gave me a slight pause to think.  Perhaps it is ironic because of the narrative that I have read from a number of Senators that “a woman is more likely to be raped by a fellow Serviceman than be killed in combat.”  The cynic in me thinks by allowing women to be Infantry MOS’s, Rangers, and SEALS, perhaps now female combat deaths from enemy fire will finally exceed rapes committed by fellow Servicemen, so we can feel like we have turned a corner on sexual assault in the military. 
    And, I am surprised that with all the violent rapes going on in the military, particularly in the deployed environment, there haven’t been any victims killing their rapists.  

  8. stewie says:

    I just didn’t understand how it was ironic, and honestly not sure your explanation ‘splains it for me.

  9. k fischer says:

    In my criminal defense practice, I’ve noticed that people who say the word “honestly” typically lie a great deal.  However, I’m constantly kidding around, so one might notice that I feel the need to preface some of my comments with “seriously.”  
    Stewie, if you are saying that you cannot decipher what might be the irony in the statement above to which the author was referring, then you are either lying or you are as sharp as a marble……seriously……
    You wouldn’t happen to own a Porsche and be a lousy pool player, would you?

  10. stewie says:

    I’m sharper than a marble and I am not lying.  I don’t see it.  There is no logical relationship between women in combat versus women being able to not be sexually assaulted”, and irony kinda requires a logical relationship between the event expected, and the ironic event that occurred. 
    I am a lousy pool player, but my mid-life crisis has not set in yet such that would require me to own a Porsche or Porsche-like vehicle.

  11. k fischer says:

    Fine.  Perhaps, i am beginning to see that the quote is more sexist than ironic.  I’m glad you got the marble joke.
    I appreciate your candidness about your pool playing abilities, too.  I thought you might have been an old mentor of mine who is still on Active Duty who used to constantly bust my chops, except when we played pool or darts.