I’d be interested in your thoughts on the effect of this memo, subject line “Integrity of the Military Justice Process,” from SecDef dated August 6, 2013.  The memo to the services and various commanders attempts to undo recent unlawful command influence (UCI) charges based on senior military and civilian leadership statements.  I think it is too general to undo everything, but I guess this will now be trial counsel Exhibit A in cases like US v. Johnson, see coverage here and here, and other UCI cases based on President Obama’s remarks about desired outcomes of sexual assault cases, additional covarage here (AFCCA in US v. Eller) and here (reports of other cases).

Code 20, in this Sidebar, attempts to make the message a little more pointed and related to sexual assault cases and the President’s comments.  Any other services MilJus policy sections attempted to similarly focus the message?

50 Responses to “SecDef Attempts to Roll Back Charges of UCI”

  1. Babu says:

    This memo would carry more weight if LtGen Helms had a 4th star.  

  2. Bill Cassara says:

    It is about as generic as “knowledge is good.”  

  3. John O'Connor says:

    Won’t MJs just read this every time UCI comes up in voir dire and ask the member if he/she understands and agrees to follow that directive?  If a member says “yes,” I’m hard pressed to see how they can be excused.

  4. Mike "No Man" Navarre says:

    JO’C, I would agree that in cases going forward that is exactly what is going to happen.  Does it fully address the the influence of the President’s statements on separation of sexual assault offenders?  I think the statements will still subtly influence members when it comes time for sentencing in a sexual assault case.

  5. soonergrunt says:

    As long as people inside and outside continue to believe (and pressure groups keep pushing the idea) that the problem is that not enough people are being convicted of sexual assault (as opposed to being held to account) then this memo won’t really accomplish much.  Nor should it.
    I’m retired now, but I still know a lot of people in the service.  Most of the ones I know believe that accusation equals conviction because that’s the way Congress and the President have behaved.  I know career NCOs in both the National Guard and the Regular Army who are turning down instructor tours or Drill Sergeant tours if they can because they don’t want to deal with female service personnel.

  6. Tami says:

    Might be more effective if it came from POTUS.  But then defense counsel will say it’s too late, you can’t unring the bell.  Plus this was written only after the UCI motions were decided in the accused’s favor, so if there was genuine concern about the possibility that POTUS’ comments could be construed as an order to dishonorably discharge sex offenders, this memo would have come out the day after.

  7. Devildwglt says:

    Cover their ass SecDef just shows more uci lol

  8. rob klant says:

    But what authority would SECDEF have to countermand an order from the President to give a dishonorable discharge to everyone accused of sexual assault?

  9. Devildwglt says:

    It’s interesting tot see how the Dubay Hearing on Palmer turns out! Any word yet? 

  10. stewie says:

    But of course we can unring the bell…we do it all of the time.  Why would this be any different?

  11. Devildwglt says:

    This is what happens when the Commander In Chief has never served and his advisors want to be politically correct and let him run amuc 

  12. Iain says:

    This should come as no surprise. In 2005, I lost a UCI motion in United States v. Bisson (NMCCA 200600997; 2007 CCA LEXIS 239) (unpublished) based on the CO’s issuance of a remedial letter after defense character witnesses came forward of their own volition but were discouraged (to put it mildly) from testifying. Many argued that the consideration of “remedial” measures is an inadequate substitute for enforcement of the prohibition against UCI through dismissal of charges. Some argue that Bisson amounts to a user’s guide on how to influence a case without fatally damaging it. Others argue that it allows the government an opportunity to repair a case not fatally damaged by ill-advised but not illegal comments by well-meaning leaders.
    What makes Bisson decidedly different than the cases potentially affected by the SecDef memo is that Bisson stands alone, whereas the SecDef memo and the comments it addresses apply to entire classes of cases across the services. I’ll be interested to see how the courts weigh its effect, but strongly suspect that future cases raising UCI based on the comments addressed by the memo will end much as Bisson did.

  13. Zachary D Spilman says:

    Mark these words:

    “Central to military justice is the trust that those involved in the process base their decisions on their independent judgment.”

    “Everyone who exercises discretionary authority in the military justice process must apply his or her independent judgment.”

    “The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.”

    “Those who exercise discretionary authority in the military justice process must exercise their independent judgment, consistent with applicable law and regulation.”

    There are so very many things to say about this. But a particular cinematic moment comes to mind:

    General Allenby: You acted without orders, you know.

    T.E. Lawrence: Shouldn’t officers use their initiative at all times?

    General Allenby: Not really. It’s awfully dangerous.

    T.E. Lawrence: Yes. I know.

    General Allenby: Already?

    T.E. Lawrence: Yes.

    General Allenby: I’m promoting you to major.

    T.E. Lawrence: I don’t think that’s a very good idea.

  14. Weirick says:

    This is why CAAFLog is so valuable. Have been searching for this memo. Found it here instantly. 

  15. Mike "No Man" Navarre says:

    Independent judgment is exactly why LTG Helms is nor CG of Space Command. So indep judgment is only a good thing if everyone agrees with your independnet judgment.

  16. Cap'n Crunch says:

    I think the memo is not helpful to the Government.  “Their judgment, in turn, must be based purely upon the facts of each individual case, not personal interests, career advancement, or an effort to produce what is thought to be the outcome desired by senior officials, military or civilian.”   I read that as an admission or threat that if you don’t toe the line, your career will not advance, and a not so subtle message that the outcome desired are convictions.
     
     

  17. paleo says:

    Not one thing in that memorandum was as strongly worded, or as bluntly put, as the comments from the President. Not only that, the memorandum was issued by a subordinate of the President. 
    I think that if you’re a defense counsel you blow up a PowerPoint slide illustrating the chain of command, with the President directly above the SecDef. To the side you find an apt comment from POTUS when he nominated the SecDef for the position, describing how he expects the SecDef to do great things and carry out the orders and desires of the POTUS. Then below you place the POTUS quote in all caps: “I EXPECT CONSEQUENCES.” Then cite the data mining adventure undertaken at the direction of the SecDef and the removal or pre-emptive firing of people from positions. Place dates by everything. Then simply ask people, are the SecDef and POTUS looking for independent judgment or are they expecting consequences?

  18. paleo says:

    One more thing: it looks awfully crybaby-ish for the Govt to roll out this memorandum only after UCI is raised, jeopardizing their victory ratio, and not immediately after the POTUS comments. 

  19. stewie says:

    So what would a suitable memo contain if this memo is not suitable?

  20. Lieber says:

    What Stewie said. 

  21. k fischer says:

    A suitable memo signed by the SecDef does not exist.  The cleanest way to cure this taint would be for Congress to make discharge for a sex offense conviction mandatory.  Or, we could just let the civilians take over until 2016.  

  22. ExTC says:

    If Congress made a discharge mandatory for 120 offenses, the defense bar would go apoplectic saying it was unfair to single out one offense in such a way. There is no way to “cure” this to the satisfaction of everyone. 

  23. AFJAGCAPT says:

    ExTC, I agree that it seems unfair to single out 120 offenses…so why not make every offense punishable by death a mandatory Dismissal/DD. Looking at the max punishment’s table, I’m having trouble seeing where a conviction and resultant punitive discharge would ever seem unjust given the offenses in question (though I feel confident someone will give me an example soon). If that were the scheme, the question would be what about the non-death 120 offenses (namely sexual assault)…I would still add them to the list as well.  

  24. Ed says:

    AFJAGCAPT
    Are you saying that one touch of someone’s butt should automatically result in a punitive discharge. Its okay if that’s your opinion but one should know your perspective.

  25. Zachary D Spilman says:

    AFJAGCAPT: Perhaps you need to take another look at the Sexual Assault Rorschach.

  26. AFJAGCAPT says:

    Ed, I’m not saying that; within the 120-sphere I would think Rape and Sexual Assault (as defined in 120, not as bandied about by the press); a butt touch doesn’t get you there.
    ZDS, if the gov’t can prove the intrepid sailor penetrated her mouth with his tongue  in a manner causing bodily harm and had (1) the intent to abuse, humiliate, harrass, or degrade her or (2) to arouse or gratify his or another’s sexual desire, I have not issue with the guy getting a BCD (DD does seem harsh when the lesser alternative is there).
    That said, if this were my mother, sister or wife and I were nearby out of uniform (and thus likely availing myself of my CCW privileges), there would be no need for anything other than an LOD as to the sailor. Perhaps then CAAFLOG could return to a version of the fascinating “what if Zimmerman were military” debate.    
     

  27. Cap'n Crunch says:

    If it were me… I’d have had the memo come from the President.  It would read something like this:  “Members of the Military:  I want to be abundantly clear, I am concerned about a culture where it appears sexual assault, a criminal activity, is or has been tolerated, and understand that I expect our laws against sexual assault, and every other provision of the UCMJ, to be enforced.  That said, it is my expectation, and I am communicating it now to both you and our military leaders, so they understand and carry out my expectation, that the Constitution of this country, which we have all sworn an oath to protect and defend, be upheld.  That requires the presumption of innocence, and the requirement that the government prove guilt beyond a reasonable doubt.  That requires those of you involved in the court martial process to be neutral, detached, and to judge each and every case on the facts and evidence, and how the law applies to those facts, and not on anything else.  Neither myself, Secretary Hagel, or anyone else in your chain of command should, or is, insinuating otherwise.  If any of my prior statements indicated any other intention to you, please allow this memorandum to set the record straight.”
    I would think that would do it.  To the extent it can be done.

  28. Phil Cave says:

    Ths skunk is in the jury box – and it smells.  (Used this many times now in motions:  “one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’.”  Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962) .)
    It is too late IMHO.
    We know that once people form an opinion they don’t change it, or it is exceedingly hard to get them to change.  This is a well known psychological phenomena.  An opinion held despite absolute proof otherwise.  Witness some extended discussions about a fairly recent officer case.
    A couple of years ago during voir dire in Walton the infamous “one drink – can’t consent” issue came up.  6 of 8 had learned that within the last six months.  So we had the MJ instruct the members on the issue and he re-aksed the question with the standard, “knowing that, are you . . . . ”
    All the officers and all but one of the enlisted said “got it.”  (Either they got it or undesrtood the right answer.)  One SSgt said, no.  When questioned a little further he agreed his leaders had told him that one equals can’t; and so he could not agree with the MJ because “It was a question of integrity.” Apparently to go against what his leaders had taught was a lack of integrity.  He did not get to sit.
    So, in the same way there will be a majority of members who will get it.  But, I think there will be a sufficiently significant number of members who will not get it.  It’s quite possible these are the ones you are looking to challenge anyway, because there are likely other issues in their voir dire leading to implied or inferred bias at least.

  29. stewie says:

    So your solution then, if “it is too late” and nothing can fix it is what?
    No more discharges for anyone convicted of sexual assault? OR something else?
    For how long?
    The acquittal rate is still somewhere south of 60%, there is not one single metric to support the notion that anyone is convicting at a higher rate since the President’s statement…and I strongly believe there won’t be one.  There are always going to be folks for whom anything can harden them into a position, both in favor of the accused (she was partly responsible for it because of dress/drink/flirtatiousness), and against the accused.
     
    To me, we should be allowing more extensive and free-form voir dire, that would solve much of this.

  30. Babu says:

    Stewie, et al, I would think it sufficient if the POTUS issued a statement which said words to the effect of:
     
    “From my past comments it may have been interpreted that I expected every allegation of sexual assault to be taken to court-martial, and anyone accused of sexual assault to be dishonorably discharged.  Let me be clear: every case is unique, and I expect everyone involved in the military justice process to exercise prudent and independent judgment.  So there may in fact be cases where an allegation of sexual assault lacks the necessary evidence to be taken to a court-martial, or where a punitive discharge is not an appropriate punishment for someone convicted of sexual assault.  I expect everyone to do what they believe to be right, based on the facts of each case.  I believe sexual assault is a scourge which must be eradicated from the military, but I do not expect any result in any specific case, will not condone any manipulation of the system, and absolutely will not tolerate any retaliation against those who exercise their discretion.”
     
    If he issues that in a memo, and it is then read to members by military judges at sexual assault courts-martial, and he then comes out in strong defense of LtGen Helms, then I think that would be sufficient remedial action.    

  31. rob klant says:

    Better yet, if he really believes what he said, then the President should just go ahead and establish a dishonorable discharge as a mandatory minimum sentence for everyone convicted of a sexual assault. 
    It’s certainly within the President’s authority to do so and it would wholly eliminate the possibility that the members’ adjudging a DD would be the product of unlawful command influence.

  32. Ex TC says:

    Rob, stop your heresy! Though I agree it would end this problem, much to the ire of the defense bar. And result in some unfairness to some accused. 
    Babu, what if it included “however, using your independent judgement based on the evidence presented to you, you feel that a dishonorable discharge/dismissal is warranted and is the right result, you should adjudged it.” 
    We could academic this forever. 

  33. Babu says:

    Ex TC, that wouldn’t be inconsistent with what I wrote, and would be fine. Not sure how what you are getting at with the “academic” angle. 

  34. rob klant says:

    Unfair to the accused?
    It would eliminate the UCI and guarantee him the right to appellate review (which, among any other errors, could correct a disproportionately severe sentence).
    Sounds like win-win to me.

  35. Dyskolos says:

    Mandatory sentencing is absurd and contrary to good judicial practice. The Feds are realizing this in drug cases and moving away from it.  There is that pesky Congress that wants to keep their finger in the eye of the judiciary though.  Something about exercising judicial independence in sentencing that has them riled.
    The cure memorandum coming from the DoD is not as good as coming from the President, but it is better than nothing.  Agree that a vior dire will have to be the vehicle.  It would appear some commenters would have the government fold its tent on sexual assault offenses.  That’s an unreasonable expectation. 
     

  36. stewie says:

    I don’t think in this case mandatory sentencing is absurd. What is absurd is to have someone convicted of a serious sexual assault and then retained.  I don’t think there should necessarily be a minimum for confinement, but I don’t think it’s absurd to say if you rape someone or commit other serious sexual assaults then you are out.

  37. stewie says:

    I understand, but don’t agree with, the argument that it’s insufficient, but how does his statement “compound” the UCI?

  38. rob klant says:

    Maybe by not directly and honestly confronting it?

  39. Butters says:

    Maybe because he didn’t tell CA’s that if they grant clemency they may still be promoted.
    Military senior leaders are taught that a subtle word to a subordinate is just like an order. 
    Secretary Hagel’s (and others) actions don’t support the words in his letter. Look at his response after
    one case when clemency was granted. Which CA wants to test the “New Theory” based on this letter? If
    they answer honestly, I bet you won’t find one.

  40. stewie says:

    Nope, I don’t think that makes it worse. You can argue it isn’t sufficient to solve the problem, but makes it worse? How so?

  41. Christopher Mathews says:

    @ Butters:  Maybe because he didn’t tell CA’s that if they grant clemency they may still be promoted.
     
    Since the promotion of Lt Gen Helms was placed on hold by a member of the Senate, how should SECDEF word that?  “Dear CAs, I don’t give a flying damn what anyone in Congress says” — or should he be more subtle?

  42. Butters says:

    CM: SecDef wrote a letter to a member of Congress when clemency was granted in the first AF LtCOL case, why not write one with a request….”I have written to members of Congress to ask that they respect the military judicial process to avoid actions and words that might give the appearance of Unlawful Command Influence. Members of Congress can of course use the legislative process to change the military justice system, but Commanders who excercise their legal authority under the UCMJ will not be punished. Period.”  He can’t direct Congress (of course), but he can ask. 
     
     

  43. Butters says:

    Stewie: If you hit the ball with your driver for round one, you can’t hit it with your sand wedge (from the same spot) and expect to cover the same distance…Unless you have a really good sand wedge.
    I think a memo that is not worded as strongly as some of the original comments simply reminds CA’s that their actions on sexual assault cases (clemency especially) could impact their careers.  
    So it makes it worse by not aggressively putting the UCI issue to rest.

  44. rob klant says:

    The only sure way of eliminating UCI is by eliminating any and all discretion:  no discretion, no chance of it being unlawfully influenced.
    Otherwise, I have a hard time imagining how SECDEF can effectively address the specific issue here,  unless — taking a cue from retired General Altenburg, as quoted in the NYT (below) — he were prepared to say something like:
    “The President recently said every military member accused of sexual assault has ‘got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”’
    “The President was obviously only saying this for political purposes.  If the President actually believed it and wanted to make it happen, he could do it simply by exercising his lawful authority to promulgate mandatory minimum sentences for sexual assault.  He doesn’t need to rely on unlawful means to do it and it was never his intent to do so.
    “In fact, the President has kept in place the same authorized sentences for sexual assault as were in place before the present controversy.  Authorized punishment for sexual assault includes a sentence of ‘no punishment’ up to whatever the maximum punishment may be for the offenses of which the accused is found guilty.”
    “So, the President has preserved the broad discretion traditionally given the sentencing authority at courts-martial and he expects it be exercised, without regards to anything else he or any other civilian or military leader might say.”
    “In every court-martial, the sentencing authority should exercise its judgment independently, based on the evidence properly before the court and the law which governs its deliberations on sentencing.  The influence of superiority in rank shall not be employed in any manner to control the independence of the sentencing authority in the exercise of its judgment….etc.” (Maybe with some other choice references to the sentencing instructions or similar language?)
    But, of course, we’d still be left with CAs fearing reprisal by members of Congress.  The only corrective action I can see there — apart from eliminating prosecutorial and post-trial discretion altogether — is to vest the discretion in a single consolidated disposition authority. 
    Perhaps the President himself, since he is a convening authority under the UCMJ?  Or, at least, someone like a terminal flag/general officer with nothing left to lose.
     
    =================
    “John D. Altenburg Jr., a former deputy judge advocate general for the Army who now practices law in Washington, said the letter could be useful for the administration.
    “It can only be positive,” he said. “I am not sure it was absolutely necessary, but this certainly clears the air. Most people in the military understand that comments are made by people for political purposes and they are not to take that under consideration, but this makes it clear to everybody.”
    http://ebird.osd.mil/ebird2/ebfiles/e20130815928703.html

  45. Butters says:

    http://www.military.com/daily-news/2013/08/16/hagels-new-push-against-sexual-assaults.html?comp=7000023317828&rank=1
    Do political statements lead to action? Please google the President’s “Just Words” speech for one answer. Secretary Hagel continues to take more action and CAs continue to see more headlines regarding sexual assault.
    Answer:  Give accused (sexual assault) service members the option to be tried by the civilian justice system. A jury vice a panel, etc…
    1. Civilian Judge/Jury not influenced by remarks from senior leaders. (Zimmerman trial as a recent example)
    2. Members of Congress get what they have been asking for and then accept the results (maybe).
    3. People see what type of cases go forward in the military compared to the civilian system.
    4. The accused receives a fair hearing without the taint of UCI by members, judges, and CAs.
    This will never happen (and we all know why), but would it be a better solution to aggressively putting the UCI issue to rest for Sexual Assault? If my hunch is correct, members of Congress might not like the results of these civilian trials, but then who could they blame? Then MAYBE the next time a SWAG statistic gets thrown out, people MIGHT approach “solutions” a bit more cautiously. 
     

  46. Christopher Mathews says:

    @ Butters:  In keeping with the spirit of your reforms, I presume you would also support use of the federal sentencing guidelines, including mandatory minimums. 

  47. Butters says:

    @ CM: I’m ok with that. I imagine that most of the sexual assault cases that the military puts forward won’t make it to trial in a civilian court anyway. So a DA would take what the military gave them as far as evidence and decide if they wanted to go forward. Everything Congress wants without the taint of UCI. CAs would be off the hook and so would the rest of the chain of command. If SECDEF proposed such an option, I would be satisfied that he is serious about addressing UCI.
    I also agree with k fischer about 2016. So this option would be available only during the President’s term.

  48. Christopher Mathews says:

    @ Butters:  I think you might be surprised what a US Attorney (not a DA) would take to trial. 
     
    It would be interesting to see how an accused would fare in a civilian court, before a civilian jury, particularly under civilian rules.  No good soldier defense, no non-unanimous verdicts (but multiple ballots allowed till you get to a verdict), no possibility of a light sentence in the event of a conviction.  I think the same dynamic that compells a lot of plea bargains in the civilian world — ie, cut a deal or face a guideline sentence of eternity in prison — would rachet up the stakes for all involved.
     
    But if this is what the defense bar wants for their clients, and Congress goes along, we’ll soon find out.

  49. Butters says:

    @ CM: I’d take those odds. At some point, and I could be wrong, even a US Attorney would realize that most of the military cases are not worth pursuing. 
    Again, I don’t think we’ll see it because the Chain of Command knows what would happen and no one wants the political fall out that would follow.