Two defendants in military sexual assault cases cannot be
punitively discharged, if found guilty, because of “unlawful command
influence” derived from comments made by President Barack Obama, a judge
ruled in a Hawaii military court week of June 10.
Navy Judge CDR. Marcus Fulton ruled during pretrial hearings in two
sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that
comments made by Obama as commander in chief would unduly influence any
potential sentencing, according to a court documents obtained by Stars
and Stripes.
On Wednesday and Thursday, Fulton approved the pretrial defense
motions, which used as evidence comments that Obama made about sexual
assault at a May 7 news conference.
The judge’s pretrial ruling means that if either defendant is found
guilty, whether by a jury or a military judge, they cannot receive a bad
conduct discharge or a dishonorable discharge. Sailors found guilty
under the Uniform Code of Military Justice’s Article 120, which covers
several sexual crimes including assault and rape, generally receive
punitive discharges.
“A member of the public would not hear the President’s statement to
be a simple admonition to hold members accountable,” Fulton stated. “A
member of the public would draw the connection between the ‘dishonorable
discharge’ required by the President and a punitive discharge approved
by the convening authority.
“The strain on the system created by asking a convening authority to
disregard [Obama's] statement in this environment would be too much to
sustain public confidence.”
The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.
Should other judges accept the same line of reasoning, commands would
have to consider issuing lesser administrative discharges to
servicemembers found guilty of sexual assault. In some cases, this could
allow servicemembers found guilty of sex crimes to retain veterans
benefits, according to Defense Department regulations.
“I think that as a defense attorney, I would raise this argument in
virtually any [sexual assault] case I had,” said Victor Hansen, vice
president of the National Institute of Military Justice and former
instructor at the Army’s JAG school.
President Barack Obama said that he has “no tolerance” for sexual assault in the military, comments made in the wake of a new Pentagon report showing the instances of such crimes have spiked since 2010.The president said he had spoken today with Defense Secretary Chuck Hagel to urge him to “exponentially step up” efforts to identify suspects in assaults, and aggressively prosecute those cases.“The bottom line is: I have no tolerance for this,” Obama said at a press conference following his meeting with South Korean President Park Geun-hye.‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”(…“For those who are in uniform who’ve experience sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs,” the president said. “I will support them. And we’re not going to tolerate this stuff, and there will be accountability.”
What constitutes “undue command influence” is, at least in part, established by Article 37 of the Uniform Code of Military Justice:
(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.
The operative question here is whether the comments by President
Obama and others in the chain of command, which based on how they are
set forth in the opinion seem to be little more than generalized
statements about the need for increased vigilance against sexual assault
in the military constitute an attempt to “coerce or, by any
unauthorized means, influence the action of a court-martial or any other
military tribunal or any member thereof, in reaching the findings or
sentence in any case, or the action of any convening, approving, or
reviewing authority with respect to his judicial acts.” In his ruling,
the presiding Judge found that there was sufficient reason to believe
that the President’s insistence that members of the military who have
engaged in sexual assault should be “prosecuted, stripped of their
positions, court martialed, fired, dishonorably discharged” constituted
at least potential undue influence over the sentencing phase of the
hearing in the case before him. Consequently, he ruled that if the
Defendant is convicted, the military jury would not be able to impose a
dishonorable discharge or similar punishing upon him. As noted above,
this would potentially mean that the Defendant would remain fully
eligible for all veterans benefits despite having been convicted of a
crime while in the military.
I don’t have the expertise in military criminal law to comment on the
Judge’s decision here, however the immediate consequences of his
ruling. Defense attorneys representing members of the military facing
similar charges will without a doubt file similar motions in the cases
they are involved in, and we’re likely to get contradictory rulings on
the matter from the presiding Judges in each of those cases.
Additionally, the ruling in these cases will likely end up being appealed, likely before the trial actually starts.
Additionally, the ruling in these cases will likely end up being appealed, likely before the trial actually starts.
The judge’s pretrial ruling means that if either defendant is found
guilty, whether by a jury or a military judge, they cannot receive a bad
conduct discharge or a dishonorable discharge. Sailors found guilty
under the Uniform Code of Military Justice’s Article 120, which covers
several sexual crimes including assault and rape, generally receive
punitive discharges.
“A member of the public would not hear the President’s statement to be a
simple admonition to hold members accountable,” Fulton stated. “A
member of the public would draw the connection between the ‘dishonorable
discharge’ required by the President and a punitive discharge approved
by the convening authority.
“The strain on the system created by asking a convening authority to
disregard [Obama’s] statement in this environment would be too much to
sustain public confidence.”
The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.
Should other judges accept the same line of reasoning, commands would
have to consider issuing lesser administrative discharges to
servicemembers found guilty of sexual assault. In some cases, this could
allow servicemembers found guilty of sex crimes to retain veterans
benefits, according to Defense Department regulations.
“I think that as a defense attorney, I would raise this argument in
virtually any [sexual assault] case I had,” said Victor Hansen, vice
president of the National Institute of Military Justice and former
instructor at the Army’s JAG school.
Hansen found Thursday’s ruling surprising, since judges have rejected
“unlawful command influence” arguments under the logic that statements
by high-level officials lose their effect as they reach the military’s
lower levels.
However, in recent months there has been a lot more said — and in
overly specific terms — about sexual assault by military and political
leaders, Hansen noted. Obama’s call for dishonorable discharges is an
example of such specificity, which begins to sound to military juries
like a direct order from the commander in chief.
“This is bad lawyering on [Obama’s] advisor’s part,” Hansen said. “It’s
certainly not a problem to say that sexual assault is a bad thing and
we need to weed it out … that’s innocuous. It’s when they get very
pointed that it’s problematic.”
Last year, Marine Corps defendants in more than 60 sexual assault cases
filed unlawful command influence claims following comments by Marine
Corps Commandant Gen. James Amos, according to a May 9 McClatchy Tribune
news report.
In one speech, Amos declared that 80 percent of sexual assault claims
were legitimate, according to the report. Judges in nearly all of the 60
disputed cases found the appearance of unlawful command influence,
according to the McClatchy report.
When contacted by Stars and Stripes, Navy legal officials in Hawaii
deferred comment to the officials at the Office of the Judge Advocate
General in Washington, D.C.
JAG officials in Washington said they could not comment because of
potential conflicts with any appeals arising from the ruling, but
confirmed the court document’s authenticity. The White House had no
immediate response when asked for comment.
Obama’s comments came after a Defense Department report stated that
3,374 incidents of “unwanted sexual contact” occurred during fiscal year
2012, a 6 percent increase over the prior year.
A secondary survey reported that if the 6.1 percent of women and 1.8
percent of men who said they experienced unwanted sexual contact are
extrapolated to include the entire military, about 26,000 servicemembers
may have been victimized in 2012.
The reports led to heightened public and congressional scrutiny of the military’s handling of sexual assault.
On Tuesday, the Senate Armed Service Committee voted down a proposal
that would have transferred authority over military sexual assault cases
to independent prosecutors. Instead, committee chairman Carl Levin,
D-Mich., included a clause in a markup of next year’s defense bill that
would require high-level review of decisions made by commanders not to
prosecute sexual assault cases.
As for the
President’s statement itself, I can’t help but think that the Judge got
it wrong here. On it’s face, what the President said struck me as a
general, benign, statement regarding future policy and the message that
the Commander in Chief wishes the military to take the issue of sexual
assault far more seriously than it has been. Is that “undue command
influence?” As I said, I’m not an expert in this area so I’ll leave that
to others, but it does feel to me like the Judge went a little over the
top here. I suppose we can be grateful that he didn’t dismiss the cases
completely.
On a general level, though, this case does point out the importance
of the White House in general, and the President specifically, not
getting involved in criminal investigations and prosecutions that occur
under his watch, whether in the civilian or military spheres.
Recently, for example, the White House has been criticized for not commenting directly on the Justice Department’s investigation of leaks that includes pursuing information from journalists using subpoenas and search warrants. There has also been a lot of criticism directed at the White House from the right for it failure to officially designating the November 2009 Ford Hood massacre as a terrorist act, and that Major Nidal Hasan continues to receive his military pay while awaiting trial on those charges. In both cases, the White House has pointedly refused to comment on the cases at hand, and that was entirely the appropriate reaction. Specific comments from the President regarding guilt or innocence of a Defendant would be highly inappropriate and would likely result in defense attorneys moving for mistrials at any criminal proceeding. The comments the President made here, of course, were not about a specific case, but this ruling is a pretty good reminder of what could happen if Presidents started bending to the demands of reporters or political opponents that they make comment on such matters.
Recently, for example, the White House has been criticized for not commenting directly on the Justice Department’s investigation of leaks that includes pursuing information from journalists using subpoenas and search warrants. There has also been a lot of criticism directed at the White House from the right for it failure to officially designating the November 2009 Ford Hood massacre as a terrorist act, and that Major Nidal Hasan continues to receive his military pay while awaiting trial on those charges. In both cases, the White House has pointedly refused to comment on the cases at hand, and that was entirely the appropriate reaction. Specific comments from the President regarding guilt or innocence of a Defendant would be highly inappropriate and would likely result in defense attorneys moving for mistrials at any criminal proceeding. The comments the President made here, of course, were not about a specific case, but this ruling is a pretty good reminder of what could happen if Presidents started bending to the demands of reporters or political opponents that they make comment on such matters.
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