As Phil discussed in this post, the Navy-Marine Corps Court of Criminal Appeals recently decided United States v. Easterly, No. 201300067 (N-M.Ct.Crim.App. Jan 31, 2014) (link to slip op.), finding that the trial military judge erred in his ruling on a Defense motion to dismiss for unlawful command influence (UCI), but concluding beyond a reasonable doubt that the trial was not infected by UCI and that an objective, disinterested observer, fully informed of all the facts and circumstances of the case, would not harbor a significant doubt as to the fairness of the trial or sentence.
The case was a sexual-assault general court-martial tried at Marine Corps Air Station Beaufort, SC, in October 2012. The appellant – a married Sergeant – was charged with adultery in connection with his sexual relationship with one woman (who was, at the time, married to a different junior enlisted Marine who was deployed to Afghanistan), and was charged with rape, assault consummated by a battery, adultery, and making a false official statement in connection with a sexual encounter with another woman and his subsequent denials to criminal investigators. The appellant pleaded guilty to the adultery offense involving the married woman and, after a contested trial before a panel of members with enlisted representation, he was convicted of the other adultery and of the assault consummated by a battery involving the other woman, and of making the false official statement. He was acquitted of two charged specification of rape. He was sentenced to confinement for two years, reduction to E-1, total forfeitures, and a bad-conduct discharge.
But to understand Easterly, you need to know some recent Marine Corps history, and you need to understand UCI.
The sexual encounters that formed the basis for the charges occurred in December 2011 and January 2012. Soon afterward, in March 2012, and seemingly totally unrelated to this case, the Commandant of the Marine Corps issued White Letter 1-12, which was a letter to Marine leaders on the subject of “Leadership and Conduct,” and it referenced “a number of recent, widely-publicized incidents [that] have brought discredit on the Marine Corps and reverberated at the strategic level.” The Commandant then began a tour of Marine Corps installations during which he gave a presentation that became known as the “Heritage Brief.” A video of the presentation was also posted on the Marine Corps website (video available here), and the version given at Marine Corps Recruit Depot Parris Island was transcribed (transcript available here).
Whether you watch the video or read the transcript, you’ll see that the Heritage Brief was a blunt message from the Commandant about misconduct and its effect on the Marine Corps. Sexual assault and the Corps’ response to sexual assault issues was a major theme. So too were the sentences adjudged by courts-martial and the decisions of administrative boards.
The Commandant followed his Heritage Brief tour with White Letter 2-12, dated May 3, 2012, and entitled “Sexual Assault.” This White Letter focused on the Commandant’s concern with the sexual assault issue and his desire to focus the Corps on addressing it. Alone the White Letter was uncontroversial, but when coupled with things the Commandant said during the Heritage Brief, it caused some to raise questions of unlawful command influence. This included the claim raised by the trial defense counsel and considered by the NMCCA in Easterly.
Folks like to say that UCI is “the mortal enemy of military justice.” United States v. Gore, 60 M.J. 178, 178 (C.A.A.F. 2004) (quoting United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986)). But I’ve never been a fan of that phrase. Rather, the tension between the command objective of discipline and the judicial objective of justice long-predates the establishment of the UCMJ, and resolving that tension was a major reason that Congress created the Code. Shortly after the Code’s enactment, the Court of Military Appeals (CMA; the former name for CAAF) remarked that “[j]ustice can be dispensed and discipline maintained [only] if one is not permitted to overwhelm the other.” United States v. Littrice, 3 U.S.C.M.A. 487, 492 (C.M.A. 1953). This perspective was restated in 1960 in one of my favorite paragraphs from the Powell Report:
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.
Concerns over “command influence” (eventually called “unlawful command influence”) also brought about the creation of the post-trial fact-finding hearing known as a Dubay hearing, as the CMA realized that such fact-finding was necessary because “command control is scarcely ever apparent on the face of the record.” United States v. DuBay, 17 U.S.C.M.A. 147, 149 (C.M.A. 1967). Dubay and numerous companion cases were about whether the Commanding General of Fort Leonard Wood violated the prohibition on command influence found in Article 37. The CMA invented the post-trial fact-finding hearing in 1967 as a way to identify command influence, and Congress soon followed suit in its own way, by strengthening the command influence prohibitions of Article 37. Pub.L.No. 90–632, § 2(13), 82 Stat. 1338 (the Military Justice Act of 1968) (link).
But UCI issues persisted, and in 1986 the CMA articulated the Constitutional dimensions of the problem, stating that, “The exercise of command influence tends to deprive servicemembers of their constitutional rights.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). It was in Thomas that the court first made its famous “mortal enemy” declaration, but it took a few more years before the court settled on a clear test for this constitutional issue.
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