Once a case is before a court-martial, it should be realized by all concerned that the sole concern is to accomplish justice under the law. This does not mean justice as determined by the commander referring a case or by anyone not duly constituted to fulfill a judicial role. It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote discipline.

The Powell Report at 12.

This goal hasn’t stopped a rotating cast of senior officials, policymakers, and special interest groups from doing everything they can to push the military justice system in their preferred direction. But in 2017, the military justice system pushed back. That makes influence our #5 Military Justice Story of 2017.

Numerous events contributed to this pick.

One was CAAF’s decision in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page), in which a deeply-divided court found that the conduct of senior Air Force officials created an appearance of unlawful command influence that required reversal of Airman Boyce’s convictions of the rape and battery of his wife.

Boyce was a collateral consequence of the political assassination of Air Force Lieutenant General Craig Franklin, whose exercise of command discretion under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013 was our #5 Military Justice Story of 2013. After Franklin acted in the Wilkerson case, and after he ordered the pretrial dismissal of charges in another sexual assault case (that eventually went to trial and resulted in an acquittal), he referred Airman Boyce’s case for trial by general court-martial. Franklin’s staff recommended the referral, but the decision was tainted by the influence of the Chief of Staff of the Air Force who – on the same day as Franklin made the referral – told Franklin that the Secretary of the Air Force had lost confidence in him and gave Franklin the ultimatum to either voluntarily retire at a lower rank or be involuntary removed from his position.

Franklin took the retirement.

Considering this, a majority of CAAF “unequivocally endorse[d] the Supreme Court’s observation that ‘federal courts have an independent interest in ensuring that . . . legal proceedings appear fair to all who observe them.'” 76 M.J. at 253 (quoting Wheat v. United States, 486 U.S. 153, 160 (1988)) (marks omitted). And the five judges were unanimous in their disapproval of the chilling effect these events had on other actors within the military justice system. The court split only on the remedy, because two judges found that Boyce was not entitled to reversal of his convictions for the mere appearance of influence. But the majority view provides a blueprint for similar reversals in the future.

Another significant case of influence was United States v. Chikaka, 76 M.J. 310 (C.A.A.F. Jun. 20, 2017) (CAAFlog case page), in which CAAF unanimously found that the sentencing-phase testimony of the appellant’s commanding officer was evidence of command influence over the court-martial.

Staff Sergeant (E-6) Chikaka was convicted after a contested trial before a panel of members with enlisted representation. The convictions arose from improper relationships with prospective Marine Corps applicants while Chikaka served as a recruiter. Chikaka’s commanding officer had strong feelings about the misconduct, and he was allowed to testify during the sentencing phase of the court-martial about “how important it is to set a strong example for general deterrence in the Sixth Marine Corps [Recruiting] District as a whole.” 76 M.J. at 311 (marks omitted). CAAF found that allowing the commander – “who outranked the entire panel and was within the chain of command of at least one member,” 76 M.J. at 313 – to testify about the importance of a harsh sentence was evidence of unlawful influence that requires further review.

That review is still pending but Chikaka’s commander who wanted to make an example out of his case may yet get his wish (though not the way he imagined it).

A third significant case questioned influence over the appellate process. In United States v. Shea, 76 M.J. 277 (C.A.A.F. May, 30, 2017) (CAAFlog case page), CAAF addressed the claim that the three-judge panel of the Air Force CCA that reviewed the case lacked independence because the Air Force Appellate Government Division sought to disqualify one of the judges from a different case for reasons of appearance. The motion reeked of desperation; only after the CCA found a conviction factually insufficient did the Government Division claim apparent bias, and even then it was asserted as bias in favor of the Government. How a claim of bias in favor of the losing party justifies giving that loser a second chance is anyone’s guess, but the Government Division made the argument. Predictably, it failed. But less predictably, the challenged judge was then removed from Shea’s case.

This was not, however, enough to warrant further inquiry. It was merely “speculation” that “amounts to no more than a claim of command influence in the air.” 76 M.J. at 282. But the mere fact of CAAF’s discretionary review of the issue reflects the court’s sensitivity to such claims.

Yet that sensitivity has limits. Time and again, Sergeant Bergdahl’s defense counsel asked CAAF to intervene in his general court-martial, and time and again CAAF refused. The seventh such refusal came in May, when CAAF denied a writ-appeal that sought dismissal of the case because of comments made about it during the presidential campaign. Bergdahl’s defense counsel insisted that such comments made a fair trial impossible – even after he pleaded guilty – and others claimed that they eroded the credibility of the military justice system itself, but CAAF was unconcerned. It was right. In the end Bergdahl was convicted of only the crimes he admitted, and his sentence was little more than what his counsel requested.

It’s hard to argue that Bergdahl was treated unfairly. Others aren’t so fortunate. The Judicial Proceedings Panel was established in 2014 to conduct an independent review of adult sexual prosecutions and related offenses under the UCMJ since the 2012 amendment of Article 120. In May it issued a report on barriers to the fair administration of military justice in sexual assault cases that raised serious questions about how the system treats an accused. The report included the observation that:

most trial and defense counsel questioned whether justice is being served by the panoply of reforms in place. Many of them believe that fundamental rights of due process have been undermined.

Report at 21. And it concluded:

The inherent difficulties in evaluating sexual assault case evidence, combined with the widespread perception that convening authorities are referring weak cases, have led to the belief by many of the Subcommittee’s interviewees that the military justice system is weighted against the accused in sexual assault cases. Such one-sidedness is particularly serious in light of the potentially catastrophic effects of being accused of a sexual crime.

Report at 24.

This hasn’t done much to deter Senator Gillibrand’s campaign to radically transform the military justice system by removing military commanders from their important role in the process. She successfully weaponized the politicalization of the military’s response to sexual assaults and assembled a mob of followers for whom criticism of military commanders is the ultimate virtue signal. But the commanders are starting to push back, and Gillibrand’s campaign is stalled.

Senator Gillibrand’s campaign is one example of influence. The Heritage Brief was another. After a video surfaced in 2012 showing four Marines urinating on the bodies of deceased insurgent fighters in Afghanistan (our #6 Military Justice Story of 2013), then Commandant of the Marine Corps General Amos made a tour of Marine Corps installations to give the Heritage Brief presentation. Ultimately, a handful of Marines were disciplined in connection with the urination video; some accepted non-judicial punishment and other pleaded guilty at special courts-martial with pretrial agreements.

One of the Marines who pleaded guilty at a special court-martial was Staff Sergeant (E-6) Chamblin. But his conviction was reversed in 2017 – and the charges dismissed with prejudice – by the Navy-Marine Corps CCA after it found an irreparable appearance of unlawful command influence stemming from the actions of General Amos and his legal advisers. The CCA concluded that public confidence in the fairness of the proceedings was undermined by factors including the Commandant making an example of Chamblin’s conduct in the Heritage Brief, despite the fact that Chamblin pleaded guilty.

Chamblin’s case may yet be certified to CAAF by the Judge Advocate General of the Navy, but it shows us how the blueprint from Boyce will affect cases in the future.

Finally, at the end of November CAAF granted review and ordered expedited briefing in the Navy case of Senior Chief Barry (CAAFlog case page). Barry was convicted of one specification of sexual assault and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed, and CAAF summarily affirmed.

But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career. CAAF responded by reversing its summary affirmation and ordering a fact-finding hearing. Then it did more. Two issues question whether a deputy JAG can commit unlawful influence, and whether such influence or its appearance exist in the case.

The warning from the Power Report looms large: A court-martial is an instrument of justice and in fulfilling this function it will promote discipline. Not justice according to the politician or the victim advocate or the commander, but “justice under the law.”

5 Responses to “Top Ten Military Justice Stories of 2017 – #5: Influence”

  1. David A Higley says:

    The focal point for unlawful command influence, at least with respect to the cases cited above, is the second sentence of Article 37, “No person subject to this chapter may attempt to coerce or, by any authorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the finding or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.” If the offender is not “subject to this chapter,” perhaps all sorts of unjust, self-serving pressure can be brought to bear upon military justice. 
     
    Judge Stucky addressed this problem in his dissent in Boyce when he said, “when they [commander-in-chief, relevant senior government leaders, and members of Congress] publically castigate individual convening authorities because they disagree with how that convening authority exercised his or her statutory discretion and demand convening authorities exercise that discretion in a specific manner, they send a perceptible chill over the entire military justice system that may affect the right of an accused to a fair trial.” I would suggest the same could be said of private castigation, and, indeed, such private admonishment could be even worse for the simple reason that it is private and thus otherwise undisclosed. Those officials, however, are not “subject to this chapter.”
     
    Judge Ryan in his dissent in Boyce also reflected on this subject: first, he mentioned, “The background story of this case is pregnant with every appearance of manifestly punitive actions by the Secretary of the Air Force (SECAF) and the Chief of Staff of the Air Force (CSAF) toward Lt Gen Franklin. . . . And their actions were no doubt incited by various statement made by members of Congress after Lt Gen Franklin exercised his statutory discretion . . ..” And, Judge Ryan appended a page long footnote to his dissent which sets forth many public authority negative comments. See Ryan, J., dissenting opinion at 2 n. 2. Second, Judge Ryan returned to this “chilling effect” and stated, “Certainly there was monkey business aplenty here with respect to Lt Gen Franklin, and I share the majority’s frustration with ‘the chilling effect that the conduct of the Secretary of the Air Force and/or the Chief of Staff of the Air Force generally may have had on other convening authorities and in other criminal cases that are not before us’.” 
     
    The problem here [i.e. unlawful command influence] is that Article 37 as presently worded is inadequate to the task. Clearly, persons not “subject to this chapter” can have a direct and negative impact upon the administration of justice. Moreover, for the person exerting “unlawful” command influence–actions which could have disastrous affect upon justice generally and military and civilian personnel in particular–Article 37 addresses no specific penalty, and the potential prosecutor is left with thumbing through the Manual for Courts-Martial and other related writings to discern possible criminal violations (perhaps Article 98, Noncompliance with procedural rules; Article 133, Conduct unbecoming an officer and gentleman; Article 134, Obstructing justice; etc.). 
     
    As pervasive as this problem apparently is, and as many faceted as this issue can be (limited only by human invention), Article 37 needs to be significantly revised to address the unlawful command influence malignancy. 
     
    The Court in Boyce did note (Slip Op. at 6 n. 3) that there may be a constitutional issue present when the unlawful influence is effected by a person not “subject to this chapter:”  “the legal issue of whether improper influence by a civilian official not subject to the UCMJ may present a due process error of constitutional dimension.” Counsel should keep this notation in mind.
     
     

  2. Philip D. Cave says:

    “She.”

  3. k fischer says:

    Z, 
     
    You forgot to mention that POTUS committed a complete and total violation of Article 37(a) when he tweeted that “[t]he decision on Sergeant Bergdahl is a complete and total disgrace.”  

  4. David A Higley says:

    Thanks, Phillip, and mea culpa Judge Margaret Ryan. 

  5. Tami a/k/a Princess Leia says:

    And with NMCCA standing by its decision in Chamblin, I suspect we’ll see the NJAG certify to CAAF.