McClatchy reports here that the Navy-Marine Corps Court of Criminal Appeals has stayed proceedings in at least one case where a Hawaii based military judge found apparent unlawful command influence based on President Obama’s comments on military sexual assault prosecutions in May 2013.   H/t MD

11 Responses to “Navy-Marine Corps Court Stops Apparent Unlawful Command Influence Cases”

  1. Bill Cassara says:

    The article states this is a government appeal, but under RCM 908 this does not appear to be an appealable issue. 

  2. Jim Richardson says:

    Isn’t this a lot like the “war on drugs?”  I am thinking about the “not on my ship etc.” posters along with the entire command structure from the SECDEF on down preaching about the harm of controlled substances and vows to eliminate them from the services.   On a couple of occasions I suggested that this might amount to UCL but no one seemed interested in taking up the subject.  I could easily argue that the Congress’s current campaign is nothing more that one gigantic UCL, particularly the move to remove sex offenses from the Codal provisions meant to insure fairness.   Sure smacks of an attempt to control the process which is the real sin of UCL

  3. Peanut Gallery says:

    Who is advising the President before he makes these comments?  Oh, that’s right…

  4. Christopher Mathews says:

    @ Jim –  I could easily argue that the Congress’s current campaign is nothing more that one gigantic UCL, particularly the move to remove sex offenses from the Codal provisions meant to insure fairness.  Congressional efforts to change the military justice system are “unlawful” only if you assume that it is mandated in its current form by the Constitution … or perhaps engraved on stone tablets and illuminated by the flickering light from a bush that burns, yet is not consumed by the flames.

  5. Mike "No Man" Navarre says:

    I am with BC, though I guess NMCCA needed to usse a stay to get briefing on whether it has jurisdiction. 

  6. TC says:

    It’s at NMCCA on a writ of prohibition or mandamus, not an appeal under RCM 908.

  7. Mike "No Man" Navarre says:

    TC, that’s fine and all, but how is an writ that is expressly outside of the court’s granted jurisdiciton in aid of that jurisdciction?  See LRM v. Kastenberg.  If the statutue allows onl;y a certain class of interlocutory cases the Court can’t expand that class via the All Writs Act, can it?  And be careful how you answer because lots of DCs want you to say yes!

  8. Bill Cassara says:

    Well if the court can take an appeal that they are otherwise expressly prohibited from taking, that is going to make me and a lot of other appellate defense counsel quite happy.

  9. stewie says:

    Does the Government have a right to an extraordinary writ or is that only for the accused?
    If the answer is yes they do, and I don’t have the time to look it up unfortunately, isn’t this the situation when it might be appropriate? When there is no other valid path of appeal?  They have a situation now where for the immediate future, they can never kick through a C-M anyone accused of a 120 offense.
    That seems like a pretty extraordinary situation to say, well, no recourse for you government, sorry about that.
    I mean if the government can’t ever use the extraordinary writ path then ok, guess they need to find another way to crack the nut, although not sure how other than waiting out the MJ or the President and others doing something that mollifies that particularly MJ.

  10. SFC V says:

    The argument that the president can’t commit UCI is rather unconvincing.  The president as commander in chief advocating for certain punishments for those convicted strikes me as UCI because at its core UCI is a violation of an accused’s right to due process.  By explicitly advocating a specific punishment his comments also imply that panels should convict. 
    If the NMCAA does determine it has jurisdiction the biggest problem for the defense is that should their argument succeed it would amount to a windfall for every accused in a sexual assault prosecution.  While courts aren’t supposed to be results oriented no one can deny that it won’t be in the back of the court’s collective minds when issuing a decision. 

  11. Christopher Mathews says:

    The trial judge who issued the order did not find an Article 37 violation, nor on these facts does there appear to be any way he could. 
    To sustain the order (assuming the service court finds it has jurisdiction to reach the merits), you either have to say that dicta of the military appellate courts and CAAF in UCI cases defines the lawful boundaries of public discourse by the President and members of Congress — something I think the courts will be very reluctant to assert — or that their comments, while lawful, nonetheless had the effect of depriving the accused of his right to a fair trial and taking the option of a punitive discharge away from the members is therefore a necessary cure.
    The weak point in the trial judge’s decision — and the place I think the appellate courts will find easiest to reverse if they’re of a mind to do so and believe that they can — is prospective nature of the ruling, which assumes in advance that all convening authorities have been fatally compromised even if they say under oath that they haven’t been.