Colonel Andrew Williams, USAF, who wrote an incredible article on the importance of the commander’s ability to overturn court-martial findings, and who was (and still is?) the Staff Judge Advocate to Lieutenant General Susan Helms, USAF, gets some attention from James Taranto’s Best of the Web column in the Wall Street Journal.

We’ve been following the developing story (see here, here, and here) of Lt Gen Helms, who counts among her many accomplishments numerous trips to outer space, history’s longest spacewalk, and a nomination to serve as vice commander of the Air Force Space Command that was placed on “permanent hold” by Senator Claire McCaskill because Lt Gen Helms granted clemency in the sexual assault court-martial of Capt Herrera (reducing his conviction of aggravated sexual assault to a conviction of indecent acts).

Taranto writes:

Meet Col. Andrew Williams, a judge advocate at California’s Vandenberg Air Force Base. He was the legal adviser in question, and he would like to set the record straight. He asks that we include the disclaimer “that I am speaking in my personal capacity–not on behalf of the Air Force.” Here is his side of the story:

And a piece of Col Williams’ story:

True, neither of us was present at trial. The dynamics of the courtroom, including the witnesses’ demeanors, could not be captured in the record of trial. But the nonverbals should not be given too much weight when they are not observed by a proper jury. It is here that the potential for error is at its greatest. Properly constituted juries can be trusted to make value judgments about witnesses; the same cannot always be said of court-martial panels, which is why Congress provided the safeguards it now threatens to take away. Gen. Helms exercised her independent, professional judgment in reviewing Capt. Herrera’s case. Her integrity–and the law–required she make the right decision as she saw it.

Perhaps some people do not know that the court-martial is a tool of the commander and not a regular court of law, or that the court-martial panel that convicted Capt. Herrera was not a jury. There are also other critical differences between military tribunals and civilian courts. All of these differences may explain why some have not understood General Helms’s actions. But members of Congress familiar with the case should know better.

3 Responses to “James Taranto meets Colonel Williams”

  1. Michael A says:

    I hate to be nit-picky, because I really did like the paper COL Williams’ wrote. However, this part of the WSJ article concerns me:
     
    “Gen. Helms’s review was for a very different purpose. She examined the case for its factual sufficiency. It was her statutory duty to do so. The fact that she was performing a statutory duty is important, because she has been unfairly criticized for exercising her “discretion” as if she had injected herself into a situation that was none of her business. Nothing could be further from the truth.”
     
    We know though, that Article 60 does not require the convening authority to act on findings, only on sentence. Art. 60(c)(3).  Further, the express terms of RCM 1107(b)(1) state that the CA is not required to review the case for factual sufficiency.  Finally, the convening authority, as part of her post-trial review, is not even required to look at the record of trial at all. RCM 1107(b)(3)(A).
     
    As a practical and prudential matter, it makes sense to thoroughly review the record of trial before setting aside a panel verdict. However, there is nothing in Article 60 that requires the convening authority to do so, at least by my read of it. I think that’s why so many senators are trying to take it down.

  2. ContractLawyer says:

    SJAs and convening authorities would rarely set foot in the court room.  
    Should SJAs attend courts-martial?  How about non-SJA Colonels?  Does it matter if it is a case with members?  
    The current ACU uniform has no branch insignia, so this would mean that members would not know if a COL in ACUs is a JAG or not; Or does it not matter?  May a JAG COL outside the chain of command who is not the SJA attend a session with members?

  3. k fischer says:

    Michael A, 
     
    Good points, which made me break out the old MCM to verify.  When talking about changing laws, failing to be nit-picky is likely to result in the proverbial clusterrrrrr………goat rope.