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.”
(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. 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.
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