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Marine’s Sexual Assault Conviction Overturned Over Command Influence

military-justice

A military appeals court has ruled that the Marine Commandant illegally influenced the adjudication of sexual assault.

AP (“Marine’s sex assault conviction tossed; appeals court says leader’s remarks influenced trial“):

The Marine Corps’ highest-ranking officer illegally influenced a jury with a series of talks about cracking down on sex assault cases, according to a military appeals court that has overturned an enlisted man’s conviction.

In its May 22 ruling, the U.S. Navy-Marine Corps Court of Criminal Appeals says commandant Gen. James Amos’ push against sexual assault was unlawful command influence. The court set aside the 19-year sentence at Fort Leavenworth, Kansas, handed down to Staff Sgt. Stephen P. Howell in October 2012. He was convicted after a military court trial at Parris Island, South Carolina, of rape, forcible sodomy, adultery and other charges against a Lexington woman.

The ruling comes as the military and Congress seeks to crack down on sexual assaults in the ranks. In Amos’ 2012 remarks, he said court-martial panels were becoming soft on such cases and urged tough actions.

Amos said “the fact of the matter is, 80 percent of the (allegations) are legitimate sexual assault” rather than “buyer’s remorse.”

In the May ruling, Chief Judge Moira Modzelewski wrote: “An objective, disinterested observer, knowing that potential court-martial members heard this very personal appeal … to ‘fix’ the sexual assault problem, would harbor significant doubts about the fairness of a sexual assault trial held shortly thereafter in June.”

Modzelewski, a Navy captain, left open the possibility of a new trial for Howell. The Marine Corps has until June 21 to appeal the case or return it to the presiding judge in South Carolina.

Howell’s attorney, Ed Massey of Erlanger, Kentucky, said Howell is stuck in the military brig until the Marine Corps makes its next move.

“He is sitting in Leavenworth with his sentence and guilty verdict set aside,” Massey said. “He is just sitting there.”

The case stems from allegations made by a Lexington woman whose son was being recruited by Howell. Howell maintained that any sexual contact with the woman was consensual.

Charles Rose, a former judge advocate in the Army and now a professor at Stetson University Law School in Gulfport, Fla., said the ruling could become problematic for prosecutors in other cases involving Marines. The potential for such a ruling “has been hanging out there for a while,” Rose said.

But as long as the comments are associated strictly with the Marines, they likely won’t cause problems for the Army, Navy or Air Force, Rose said.

Only if defense attorneys can find a way to attribute the remarks to the commander-in-chief “or his agents” would Amos’ comments potentially become an issue in other branches of the service, Rose said.

Well, that part is easy enough. As Doug Mataconis noted a year ago, military judges have already found President Obama’s remarks on sexual assault to constitute undue command influence. Subsequently, a wave of other judges ruled the same.  As I wrote at the time,

Obama is not only a graduate of Harvard Law School but taught for years at the University of Chicago Law School, two of the most prestigious legal institutions in the country. Nor is he at this stage a neophyte; he’s been president four years. Surely, he should have understood the impact of his words here.

Alas, this is a case of his multiple roles being in conflict. As the nation’s head of state and as the Democratic party’s leader, he had to say these things about the outrage of sexual assault, let alone that committed by top officers. As commander-in-chief of the armed forces, it was also imperative to make it clear that this behavior can not and will not be tolerated. But that role also brings with it a responsibility to not prejudice trials that would come before military juries. He failed in that responsibility.

The commander-in-chief can—and indeed must—demand that his subordinates follow the Uniform Code of Military Justice and order commanders to vigorously enforce parts of that law that are being ignored. What he can not do is issue statements that those accused of crimes are guilty or  urge specific punishments; that can quite reasonably be taken as a direct order.

As Butch Bracknell, a former Atlantic Council colleague and (since retired) lieutenant colonel in the Marine JAG corps, wrote in the comments section of the post,

 Lets cut the President a little slack here. Con Law professor or not, UCI is not a universal legal concept: it is LIMITED to the military law context only, and there’s no reason he should have really foreseen the impact of his words. There is simply no analogue in civil law. The Governor of Texas can say in a press conference “every murder conviction should result in a death sentence” and it introduces NO legal error. The military system is different because jurors are also reflexive orders followers and there is a huge risk their tendency to follow orders will overcome their duty to exercise independent judgment as a juror. And the President made these remarks extemporaneously, sort of blindsided by a reporter’s question as he met with a foreign leader. If this was said at a press conference ABOUT MILITARY SEXUAL ASSAULT it would be less understandable. If there is a failure here — IF — it’s with DOD for failing to foresee this very scenario and failing to send over a white paper to the President’s communications gurus. Like they would have read it.

Amos’ words, befitting a Marine, were more blunt than the president’s. But, given that he was under direct order from the commander-in-chief to fix this problem, I’m not sure what the hell he was supposed to do. The president could hardly have been more clear:

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.”

Regardless, it doesn’t take a particularly creative reading of Article 37 of the UCMJ, which defines Unlawfully Influencing Action of the Court, to see either Obama’s or Amos’ words as being in contravention:

(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.

(b) In the preparation of an effectiveness, fitness, or efficiency report on any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, represented any accused before a court-martial.

What’s not at all clear from my reading of commentary on this issues is how wide a swath these rulings need to cut. Modzelewski, for example, pointedly noted the proximity of Amos’ remarks to the trial. But, even then, surely, justice doesn’t demand that every Marine—or, indeed, anyone under Obama’s purview—be given a free pass for sexual assault on the grounds that the boss indicated that they wanted to see people punished if they committed that particular crime.

UPDATE: For a deep dive into Modzelewski’s opinion, see “More On Unlawful Command Influence.”

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. This is why it’s puzzling to me why the President’s advisers thought it was a good idea for him to speak out on this issue like he did.

    Unless, that is, they didn’t talk to the lawyers first.

    (And dealing with what happens when people don’t talk to lawyers first probably describes a good 50% of what the legal profession does)

    Like or Dislike: Thumb up 2 Thumb down 1

  2. Tyrell says:

    This seems unusual, strange, arbitrary, and maybe over the edge. This Marine commander did as he was told, and as he thought was right. How is he to make sure that someone who might be on a jury would not hear his message ? This is the same with anyone who could be a potential juror at any time in the future. So, a leader such as a political figure, athlete, entertainer, or pastor gives an opinion that such and such is wrong, don’t do it, and people who do should be held responsible: is that influencing a potential juror ? I could understand if they walked into a courtroom and did it, or if they called jurors on the phone or went to their homes.
    Do these examples fit what happened in this case ?

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  3. beth says:

    I remember when you wrote on this previously and thought it was overly broad since the President wasn’t trying to influence a specific case; he was merely speaking in generalities. If he came out with the same statement regarding murder would they let a convicted murderer go free for the same reasons?

    Like or Dislike: Thumb up 6 Thumb down 0

  4. The examples you’re citing are from the civilian world.

    The difference here is that the person making the comments is the Commanding Officer of the people charged with deciding the guilt or innocence of the accused, or in the case of the President’s comments their Command In Chief.

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  5. James Joyner says:

    @Tyrell: @beth: As @Doug Mataconis notes, it’s just different in the military. The military culture is and has long been such that the commander’s expression of his wishes is to be considered a direct order. If the Commander-in-Chief declares, “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” then there’s a heavy presumption that he expects conviction of people who are accused of sexual misconduct—certainly if there’s room for doubt as to consent or other matters of interpretation. Amos doubled down on this, essentially declaring that, if it’s a “He said, She said” situation, Marines ought presume what She said to be true.

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  6. James in Silverdale, WA says:

    @Doug Mataconis: “The examples you’re citing are from the civilian world.”

    Maybe that’s where these cases belong, utterly outside military influence. There’s clearly no justice being handed out by the military since, oh, say, the illegal invasion of Iraq. At least.

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  7. KM says:

    In the May ruling, Chief Judge Moira Modzelewski wrote: “An objective, disinterested observer, knowing that potential court-martial members heard this very personal appeal … to ‘fix’ the sexual assault problem, would harbor significant doubts about the fairness of a sexual assault trial held shortly thereafter in June.”

    This is the biggest load of BS I head in quite some time. If they ran a campaign to increase awareness of drunk driving, does that mean we should overturn some convictions too? How about drugs? I can guarantee command influence stepped in on some of those cases – do we have to worry about too?

    Her argument is that the reminder from above that rape cases are, ya know, rape cases and should be treated with the gravitas they deserve means that someone who was convicted on the evidence presented in court was unfairly treated due to “he said, she said” syndrome and the fact that it was after June. That is an insult to everyone in that courtroom – like if it had taken place in Feb, they would have decided properly but now they’re all discombobulated. He was found guilty in a court of law but let’s set side because “agenda” may be in play. Bureaucratic BS.

    Like or Dislike: Thumb up 4 Thumb down 1

  8. Mikey says:

    @KM:

    If they ran a campaign to increase awareness of drunk driving, does that mean we should overturn some convictions too? How about drugs? I can guarantee command influence stepped in on some of those cases – do we have to worry about too?

    Running a campaign to increase awareness of drunk driving is very different from a commander saying “It would be great if we got a 100% conviction rate for drunk driving.” Because the latter is, to a member of a court-martial panel, the same as saying “You will convict, regardless of the evidence.”

    What General Amos said was basically “when you consider the evidence, don’t consider it objectively and impartially; rather, bias your judgment in favor of the accuser.” It’s not just “bureaucratic BS” to realize that could lead to a less-than-fair trial.

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  9. Seems to me the solution here is to select the jurors for courts martial outside the command chain. Maybe select them from honorably discharged/retired soldiers instead of active duty soldiers? If they’re not under command, they can’t be subject to unlawful command influence.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. @KM:

    If they ran a campaign to increase awareness of drunk driving, does that mean we should overturn some convictions too?

    Jurors for drunk driving cases don’t generally work for the government, so they don’t have to worry about retaliation if the people behind the drunk driving campaign think they’re acquitting too many people.

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  11. alkali says:

    If the Commander-in-Chief declares, “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” then there’s a heavy presumption that he expects conviction of people who are accused of sexual misconduct …

    The premise is that “we find out someone’s engaging in this,” not “if someone’s alleged to have engaged in this.”

    People who have served in the military might not understand this because of their lack of understanding of the ways of the civilian world, but out here this is called insubordination and bullsh*t.

    Like or Dislike: Thumb up 1 Thumb down 1

  12. KM says:

    @Mikey:

    Running a campaign to increase awareness of drunk driving is very different from a commander saying “It would be great if we got a 100% conviction rate for drunk driving.” Because the latter is, to a member of a court-martial panel, the same as saying “You will convict, regardless of the evidence.”

    Ah no, no it is not the same. Unless you are suggesting that all jurists with a military background are mindless, spineless, order-bots who can’t think for themselves. What people here are arguing is that because someone in authority is emphasizing something or some problem, it is the same thing as a direct order or even an indirect one. False equivalency. You do the jurists wrong by implying they wouldn’t or couldn’t convict unless the boss put pressure on them.

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  13. KM says:

    @James:

    Not often I disagree you but….

    Amos doubled down on this, essentially declaring that, if it’s a “He said, She said” situation, Marines ought presume what She said to be true.

    Because previously it was what He said was assumed to be true. Not nice being on the other foot, is it? To have not have the Law believe you because of your gender?

    If the Commander-in-Chief declares, “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” then there’s a heavy presumption that he expects conviction of people who are accused of sexual misconduct

    I am not sure why you find this objectionable. If you do the crime, you do the time. You’re damn right there is a presumption that justice will be served. It almost sound like (and skirting real close here James) that you are proposing that most cases are false/fabricated/not quite honest and that poor poor servicemen are being trapped and screwed by the legal system. Not Innocent-Until-Proven-Guilty but being actively railroaded. I’m going to assume that wasn’t your intent but that’s what this is coming across as. If it gets to the court martial stage, there’s something a hell of a lot more substantial then He Said, She Said. The CIC’s statement that criminals be held accountable is perfectly in line with our legal and moral principles. If you’re reading “Convict, convict, damn the evidence!” in that, says more about you then it does about the CIC.

    Like or Dislike: Thumb up 4 Thumb down 1

  14. James Joyner says:

    @KM: Both POTUS and the CMC were implicitly saying that military juries were being insufficiently willing to convict and recommend harsh sentences for those accused of sex crimes and ordering that to stop. That’s illegal command influence.

    I’ll reiterate what I said a year ago and quoted in the OP:

    As the nation’s head of state and as the Democratic party’s leader, he had to say these things about the outrage of sexual assault, let alone that committed by top officers. As commander-in-chief of the armed forces, it was also imperative to make it clear that this behavior can not and will not be tolerated. But that role also brings with it a responsibility to not prejudice trials that would come before military juries. He failed in that responsibility.

    The commander-in-chief can—and indeed must—demand that his subordinates follow the Uniform Code of Military Justice and order commanders to vigorously enforce parts of that law that are being ignored. What he can not do is issue statements that those accused of crimes are guilty or urge specific punishments; that can quite reasonably be taken as a direct order.

    Amos, likewise, was doing absolutely the right thing the wrong way. It’s absolutely essential to make it clear that sexual assault is a crime and will not be tolerated in the Marine Corps. But courts have ruled time and again that the way he delivered that message went to far, verging into unlawful influence.

    And this:

    If it gets to the court martial stage, there’s something a hell of a lot more substantial then He Said, She Said

    Is precisely what illegal command influence is all about. The mere fact that the commander has recommended courts martial already stacks the deck somewhat against the accused. If the Commandant is telling juries that the accused is 80 percent likely to be guilty and that the Corps needs to “get rid” of those people, that’s a hell of a thumb on the scale.

    Remember, the point of these rules is to ensure that the accused gets a fair trial.

    Like or Dislike: Thumb up 1 Thumb down 2

  15. Jenos Idanian #13 says:

    @James in Silverdale, WA: Maybe that’s where these cases belong, utterly outside military influence. There’s clearly no justice being handed out by the military since, oh, say, the illegal invasion of Iraq. At least.

    Of all the appalling things I’ve seen in comments here, this has to be near the top.

    I won’t even go into the “illegal invasion” bullshit. Let’s just look at the accusation.

    Remember Abu Ghraib? That happened under the US military. It was brought to light by a whistle-blower who reported what was going on up the chain of command, and it was dealt with. The guilty were tried, convicted, stripped of rank, and sent to prison. And those who should have known what was going on were also punished.

    Like or Dislike: Thumb up 0 Thumb down 5

  16. KM says:

    @James:

    Both POTUS and the CMC were implicitly saying that military juries were being insufficiently willing to convict and recommend harsh sentences for those accused of sex crimes and ordering that to stop.

    I read this and confess I don’t understand the problem. He’s ordering them to take their duty more seriously. They should be willing to convict if proper, if the person is guilty. Dismal justice for and to Marines, a shame all around. Perhaps it is the military culture (and inherent machismo thereof) but it wasn’t being done before. That’s why we are having this conversation in the first place. Convictions weren’t taking place when they should, slaps on the wrist instead of jail time, commanders voiding punishments. He’s saying they should be willing to, not that they have to. He is not ordering a 100% conviction rate; implicit =/= explicit and its disingenuous to argue they are the same thing. That is MASSIVE reading into something. You are right that is culture speaking and its clear culture is a very big factor here.

    It’s starting to sound like military culture needs a shake up badly if (a) you need to be told to be willing to give a harsh sentence to a Marine who turned on his own in such a disgusting manner, (b) when told to get their $@^& in gear and do their job as jurists, the interpretation is “Auto-convict” and (c) willing to overturn a conviction because the CIC and superiors pointed out what a crappy job they were doing is an “untoward” influence.

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  17. Mikey says:

    @KM:

    What people here are arguing is that because someone in authority is emphasizing something or some problem, it is the same thing as a direct order or even an indirect one.

    It’s not a matter of mere emphasis. The CMC’s statement was very different from an awareness campaign, and it was very different from simply emphasizing what actions are unacceptable to the Marine Corps. His statement was a literal appeal to future courts-martial panels to give greater weight to the testimony of the accuser–he even provided a percentage.

    You do the jurists wrong by implying they wouldn’t or couldn’t convict unless the boss put pressure on them.

    This isn’t about whether or not a panel will convict without pressure from a commander, it’s about ensuring defendants get a fair trial.

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  18. KM says:

    @James:

    The mere fact that the commander has recommended courts martial already stacks the deck somewhat against the accused.

    This must be another military culture thing. If you’ve been charged and brought to trial anywhere in the world, there is the implication you might be guilty as that’s why you’re on trial in the first place. You might be Innocent-Until-Proven-Guilty but everyone in that room is there because the accusation of a crime has been made. Either from commander, JAG or plain old civilian DA, the authorities are saying you are guilty of a crime and thus are going on trial.

    How in the hell is this tipping the scales?

    If the Commandant is telling juries that the accused is 80 percent likely to be guilty

    If the assumption in the ranks is that because the Commandant recommended court marital = guilty as hell, then that applies for every court martial not just the sexual assaults. Again, culture if 80% guilt assumption is made by rank and file due to who issued the recommend. Is it because you can get away with a hell of a lot before a court martial kicks in? Only serious if that recommend comes down?

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  19. James Joyner says:

    @KM:

    If you’ve been charged and brought to trial anywhere in the world, there is the implication you might be guilty as that’s why you’re on trial in the first place

    Yes, but the jurors don’t work for the district attorney or the chief of police.

    If the assumption in the ranks is that because the Commandant recommended court marital = guilty as hell

    That’s not the issue. As noted in the piece, Amos’ 2012 version of the State of the Union speech declared that those accused of sexual assault are generally guilty. He gave a figure of 80 percent. That’s prejudicial as hell coming from the senior Marine.

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  20. @KM:

    Because previously it was what He said was assumed to be true.

    No. Previously what the accused said was assumed to be true. That’s how that silly “innocent until proven guilty” thing works.

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  21. Grewgills says:

    @Mikey:

    What General Amos said was basically “when you consider the evidence, don’t consider it objectively and impartially; rather, bias your judgment in favor of the accuser.”

    You might have a point if that was at all a fair characterization of what he said.

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  22. Grewgills says:

    @James Joyner:

    Both POTUS and the CMC were implicitly saying that military juries were being insufficiently willing to convict…

    and that was demonstrably true

    …and recommend harsh sentences for those accused of sex crimes and ordering that to stop. That’s illegal command influence.

    They recommended harsher sentences for those convicted, that is rather different. If I’m remembering correctly you have acknowledged the truth of their statements, how can they order that that very real problem be addressed without it rising to the level of undue influence?

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  23. george says:

    @KM:

    Because previously it was what He said was assumed to be true. Not nice being on the other foot, is it? To have not have the Law believe you because of your gender?

    So what you’re saying is throw out the presumption of innocence? If an accusation is enough in this, why not in everything, and then why bother with courts at all? Save a lot of time and money just jailing everyone someone bothers to accuse.

    The problem with “he said, she said” situations is the lack of evidence other than the accusation. Seriously, are you really suggesting we change our legal system to guilty until proven innocent? You know that’s going to cut in all directions – anyone can make an accusation if no proof is needed.

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  24. Grewgills says:

    @James Joyner:

    He gave a figure of 80 percent. That’s prejudicial as hell coming from the senior Marine.

    Does it matter if it is true?

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  25. DrDaveT says:

    James, I see your point, and I think it has considerable force. I’m afraid that where I come out, though, is an inescapable conclusion that military courts should restrict themselves to military offenses (insubordination, fraternization, neglect of duty, etc.) and leave the things that are a crime for anyone anywhere to the civilian courts.

    As you so clearly observe, there is an irreconcilable conflict when the jurors have sworn to obey the orders of the prosecutor. You’re never going to be able to fix that by asking commanders to pretty please never talk about crime and/or punishment.

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  26. Mikey says:

    @Grewgills:

    You might have a point if that was at all a fair characterization of what he said.

    So what is a fair characterization? If you have it, present it.

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  27. Megan McArdle says:

    @DrDaveT: I agree with this, in the case of the campus tribunals that are increasingly being pushed instead of rape trials. But I don’t see how that’s going to work in the military, which operates in many countries, sometimes on sovereign US soil, sometimes not. How are you going to get a civilian jury for a crime that took place while on patrol in Afghanistan? And if you can’t get a civilian jury, you’re back to the same problem: this is basically the same as having the head of your company, who also happens to employ the DA, the police, and possibly the defense attorneys, hint strongly that he will not be satisfied unless you, juror, return with a conviction.

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  28. MarkedMan says:

    James, I’ll bow to your familiarity with military culture and law and accept what you say as true. But given that, in such cases the the military courts should just bow out and the case be transferred to a civilian courtroom. Why did the civilian authorities led this guy get tried in military courts anyway? The woman involved is a civilian.

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  29. Rafer Janders says:

    @Megan McArdle:

    But I don’t see how that’s going to work in the military, which operates in many countries, sometimes on sovereign US soil, sometimes not. How are you going to get a civilian jury for a crime that took place while on patrol in Afghanistan?

    Um, you fly everyone back to the US. We have these things called planes now, Megan.

    One of the reasons that the court-martial system developed in the past was physical necessity: when a naval ship or an army was out in the field for months or years on end, it was impossible to wait for justice until everyone got back home. The military had to operate its own justice system because there was no one else around to do it.

    But that’s no longer true now. Our military no longer operates over the horizon. We have real-time communications, we have email and Skype and satellite and cell phones, we have planes. We can pick someone up from an outpost in Afghanistan and have them in front of a federal judge in the US in less than 24 hours.

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  30. Jack says:

    James,

    I applaud your knowledge on military justice as well as your willingness to share it. The military justice system is unique in so many ways that those that have not served cannot understand.

    To those unfamiliar with the system, it begins with the lowest level commander, be that a Lieutenant, Captain even a squad leader and works its way up from there. However, these lower level commanders have no ability to convene a Courts Martial, they may only prefer charges. As I recall, a Court Martial may only be convened under the authority of an Colonel (0-6) or above. That 0-6 as well as everyone above or below him or her is subject to command influence. If someone intimates that a promotion to the next higher grade is subject to 100% punishment for all cases of sexual harassment or sexual assault then there will be more severe harges brought against those issues that only border on sexual harassment or sexual assault, thus undue command influence.

    To those who feel that these should be tried in civilian courts, who has jurisdiction? A court MUST have jurisdiction to try a person. Flying them home from far away lands does no good if the court doesn’t have jurisdiction. Even a speeding ticket, which we can all agree falls under a civilian jurisdiction, CANNOT be tried under a local judge when that ticket was issued on military installation simply because that civilian court has no jurisdiction.

    Finally, the military justice system must be flexible enough to get swift results and cover a plethora of “crimes” that do not exist in the civilian courts system. Civilians may not think keeping their quarters clean is a big deal, but failure to do so on a ship or in a barracks could cause any number of problems from as little as infestation to disease outbreak. I’ve seen people convicted, resulting in loss of rank and loss of pay for “Destruction of Government Property” –yet all they did was get a severe sunburn causing them to miss duty. From the time of preferred charges to conviction took less than 7 days. No one else in that unit has gotten a sunburn.

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  31. Rafer Janders says:

    @Jack:

    To those who feel that these should be tried in civilian courts, who has jurisdiction? A court MUST have jurisdiction to try a person. Flying them home from far away lands does no good if the court doesn’t have jurisdiction.

    One simple solution is to have all serious crimes in the US fall under the jurisdiction of the particular state where the alleged crime is committed, and have overseas offenses fall under the jurisdiction of the federal courts. This largely mimics the system we have for civilians here in the US, where crimes are either state or federal depending on the offense and/or the area where the crime is committed (murder on the streets of Los Angeles is a local crime, while murder in a national park in California is a federal crime).

    So, e.g., a Marine who rapes someone in Manhattan gets tried by the NY State courts, while a Marine who rapes someone in Kandahar, or onboard a carrier at sea, gets tried in the US by a federal judge.

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  32. Jack says:

    @Rafer Janders:

    One simple solution is to have all serious crimes in the US fall under the jurisdiction of the particular state where the alleged crime is committed, and have overseas offenses fall under the jurisdiction of the federal courts. This largely mimics the system we have for civilians here in the US, where crimes are either state or federal depending on the offense and/or the area where the crime is committed (murder on the streets of Los Angeles is a local crime, while murder in a national park in California is a federal crime).

    This does not mimic the system we have for civilian offenses. Even federal courts have jurisdictions and the crime MUST occur WITHIN that jurisdiction for a court to be able to try that person. State courts have jurisdiction over matters within that state alone. If a person is accused of murder in another country, no US federal, state, or local court has jurisdiction.

    One of the most fundamental questions of law is whether a given court has jurisdiction to preside over a given case. A jurisdictional question may be broken down into three components:

    whether there is jurisdiction over the person (in personam),
    whether there is jurisdiction over the subject matter, or res (in rem), and
    whether there is jurisdiction to render the particular judgment sought.

    Simply speaking, these courts do not have jurisdiction over military personnel for crimes committed on foreign soil. As to crimes committed on US soil, I presume most courts defer to the military because while they can punish an offense with jail-time and/or fines, they cannot reduce pay, order forfeiture of pay, reduce rank, sentence to hard labor, dishonorable or otherwise discharge or numerous other punishments that the military can implement. If this was tried in a civilian court, he would/could be sentenced for the sexual assault and/or rape only. He could not then be reduced in rank, reduced in pay, or dishonorably discharged as that would constitute double jeopardy.

    He was tried in violation of Articles:
    92 (Failure to Obey an Order or Regulation),
    120 (Rape and Carnal Knowledge)
    125 (Sodomy)
    128 (Assault)
    and 134 (Adultery)
    They sought confinement, reduction to pay grade E1, forfeiture of all pay and allowances, and a dishonorable discharge. I count at least 2 to 3 of the above charges that do not apply to civilians.

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  33. DrDaveT says:

    @Jack:

    If a person is accused of murder in another country, no US federal, state, or local court has jurisdiction.

    Under current law, this is correct. I don’t see any intrinsic barrier to changing this, though. If we have the right/might to try members of the armed forces in our own military courts (instead of by the host nation under their own law), we presumably have the right/might to send them stateside for trial. It’s just a question of changing the law to establish which civilian court would have jurisdiction in which cases.

    For crimes committed on US military bases, embassy grounds, or ships at sea, the same applies, without even the question of annoying the host.

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  34. Jack says:

    @DrDaveT: Dave,

    While I agree we could change over 200 years of jurors prudence, I think there are better ways to address this problem. The defense in this case performed voir dire and potential jurors admitted that they felt recent statements about sexual assaults in the military were true–although they had no direct knowledge of the specifics. The defense requested the jurors be dismissed and the judge refused. In my opinion, this judge was biased and directly or indirectly caused this case to be thrown out during the appeal. The defense even requested the judge remove himself and was also rebuked.

    A better solution, in my opinion, would be to ensure trial judges remain fair and impartial. Had a new judge been appointed and had the jury properly reached a decision without undue command influence, he would be in jail today.

    Again, civilian courts can only deliver civilian punishments.

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  35. Matt Bernius says:

    @Jack:
    Is there a procedure within the Military Courts to file a grievance against a judge? If this guy fubar’d as bad as you are describing, I would have to think that *someone* should bring a complaint against him(?).

    The defense in this case performed voir dire and potential jurors admitted that they felt recent statements about sexual assaults in the military were true–although they had no direct knowledge of the specifics.

    Serious question — if all the jurors answered yes to this question (even after the defense had used its strikes), would that have suggested an undue command influence? At what point does acknowledging the facts at hand (which no one seems to be denying) supersede the issue of influence?

    Or can you only sit a jury full of people who *do not* believe that there are sexual assault problems in the military?

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  36. Jack says:

    Individual voir dire revealed the following: eight of the eleven members attended the Heritage
    Brief (A mass briefing on sexual assault among other things by the Commandant of the Marine Corps (CMCI) in which he said “I know fact from fiction. The fact of the matter is, 80 percent of those [348 reported sexual assaults reported in 2011] are legitimate sexual assault). This occurred a mere 2 months before trial.

    Many had also either read White Letter 2-12 issued 1 month before trial (summarized as follows: sexual assault is a crime; many Marines fail to acknowledge the scope and seriousness of the issue; the CMC expects leadership to be engaged; and he has convened a group of senior Marines to design a Corps-wide campaign to address the issue. Underneath his signature, CMC hand-wrote: “Marines. . .leaders. . .I need your immediate attention to this matter!”) or had viewed the media coverage; virtually all acknowledged a high degree of deference to the CMC, particularly when he holds a strong opinion on a topic; they recalled the Heritage Brief primarily focusing on two things–sexual assault and accountability; almost all remembered and accepted as true the CMC’s statement that 80% of sexual assault allegations are legitimate; and, most would characterize the CMC as unhappy, frustrated, or disappointed in his officers and senior enlisted for their failure to hold Marines accountable.

    One juror responded to voir dire with “I can see where some people would feel some pressure to do something. I don’t want to say their judgment is clouded but they could feel some pressure to think one certain way.” He then characterized a possible reaction by a panel member as “If it’s close, I’m on the fence, I’m going to go with the Commandant.

    Another juror also acknowledged that the CMC’s remarks may have “some bearing” in her decision-making as a panel member.

    A third responded, in reference to the CMC’s 80% remark “So if he said it happens, it happens.”

    Much of what I quoted above was from the decision here: http://www.jag.navy.mil/courts/documents/archive/2014/HOWELL-201200264-UNPUB.pdf

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  37. Jack says:

    @Matt Bernius: Matt,

    It’s not simply that the jurors admitted there was a problem with sexual assault in the military, they admitted hearing and or reading the statements from the CMC.

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  38. Matt Bernius says:

    @Jack:
    Thanks for all of this great material. BTW, are you former JAG?

    It’s not simply that the jurors admitted there was a problem with sexual assault in the military, they admitted hearing and or reading the statements from the CMC.

    But it seems like, from what you cited, that the problem goes even deeper than this. Based on all this information, I don’t see how it will ever be possible to get a sexual assault conviction — or even hold a “fair” trial.

    After all, doesn’t any sexual harassment training implicitly endorse a CMC view?

    Again, it sounds as if simply CMC acknowledging the scope of the problem is enough to skew results for the foreseeable future.

    Again, based on the culture you and others are describing, what are the honest chances of anyone not being exposed to the CMC’s opinion on this issue (if one wants to call it an opinion).

    Or, perhaps you can explain, under the present conditions, what it would take to hold a “fair” trial. Because as an outsider, its seeming like it would be impossible.

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  39. Mike says:

    Military extra territory jurisdiction act allows a crime committed by a soldier or civilian accompanying the force to be tried in a us federal court. It has been used a few times over the past 12 yrs against contractors and former soldiers

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  40. Jack says:

    @Matt Bernius: I see an easy answer to this. Jurors from another service.

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  41. Jack says:

    @Mike: Good catch. Although, it covers civilians and former military who are not subject to the UCMJ.

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  42. Jack says:

    @Jack: While it says,

    U.S. Code › Title 18 › Part II › Chapter 212 › § 3261
    18 U.S. Code § 3261 – Criminal offenses committed by certain members of the Armed Forces and by persons employed by or accompanying the Armed Forces outside the United States
    (a) Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States—
    (1) while employed by or accompanying the Armed Forces outside the United States; or
    (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice),

    It effectively means Government Civilians and contractors. because,
    (d) No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless
    (1) such member ceases to be subject to such chapter; or
    (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.

    Effectively, that means no active duty member of the armed forces is subject to this act.

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  43. Matt Bernius says:

    I see an easy answer to this. Jurors from another service.

    That is a fascinating answer. Is there any precedent for that?

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  44. DrDaveT says:

    @Jack:

    Again, civilian courts can only deliver civilian punishments.

    Jack, first let me thank you for the valuable info and insights here. If there’s a way to fix the military justice system instead of scrapping it, I’m open to it.

    That said, civilian punishments are appropriate for crimes that are crimes for civilians. Military punishments are appropriate for the specialized offenses — insubordination, fraternization, dereliction of duty, desertion, etc. — that apply only in the military. As I said in the other thread, I’m fine with leaving those to military courts. I’m even OK with double jeopardy, where a civilian court determines civilian penalties (or acquits) and a military court determines service consequences (or acquits), in cases where both courts apply.

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  45. Jack says:

    @Matt Bernius: I’ve never seen it, but it is the “Military Justice” system and members from another service would be considered peers.

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  46. Jack says:

    @DrDaveT:

    I’m even OK with double jeopardy, where a civilian court determines civilian penalties (or acquits) and a military court determines service consequences (or acquits), in cases where both courts apply.

    I am NOT OK with double jeopardy. You cannot try a person for the same offense twice.

    Additionally, if we did change the law and allow these cases to be tried in civilian court, what then happens to the military member while serving his or her sentence? You cannot try them in military court while they are serving a separate sentence, as now you are violating Due Process. That means, unless and until a military court finds a verdict of guilt, the military member will be drawing pay, increases in rank, benefits, etc. It will not work.

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  47. DrDaveT says:

    @Jack:

    I am NOT OK with double jeopardy. You cannot try a person for the same offense twice.

    I should have put it in scare quotes — that’s not what I’m proposing. I’m proposing having a civilian court try the crime, and the military court try the breach of military code, distinct from the part that is a crime for civilians. Example: a civilian court could try a charge of assault and battery; the military court would try the additional factor of striking a superior officer. Discharges other than honorable, and all the lesser military disciplinary actions associated with violation of service oaths and discipline, would be the sole prerogative of the military court.

    You cannot try them in military court while they are serving a separate sentence, as now you are violating Due Process.

    I can’t tell whether this statement is also based on a misunderstanding of my suggestion or not. Why can’t the military court try them for the (separate) military offenses while they stand convicted in a civilian court? Or even while they are serving sentences? (Hypothetically, that is — not under current law.)

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  48. Jack says:

    @DrDaveT: Mike, what you suggest is still double jeopardy. The assault, tried in criminal court, is the same crime that would be needed to prosecute for striking the superior officer.

    Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction.

    The military does not punish someone for a crime for which they already received/completed punishment by a state or federal court. This is for practical, legal, and public policy reasons. A civilian conviction for drunk and disorderly, for instance, can simply be placed in the member’s personnel record, result in suspended privileges, or require alcohol or drug screening. Military punishment for an equivalent act is often superfluous. The military often considers such convictions to be administrative matters, and these are rarely assessed as disciplinary or criminal penalties.

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  49. DrDaveT says:

    @Jack:

    The assault, tried in criminal court, is the same crime that would be needed to prosecute for striking the superior officer.

    Under the current system, yes. I seem to be having trouble expressing myself clearly here. I’m proposing a very different system from the current one, in which the military court would not prosecute for assault at all, but would instead decide what purely military discipline (in additional to any civilian conviction) would be appropriate to the facts of the case. In some cases, the answer would be “none”. In others, the answer would be “dishonorable discharge”. There are lots of possibilities in-between, and acquittal on the civilian charges would not necessarily mean that the facts do not justify military discipline.

    For charges like “insubordination”, there would be no civilian charges at all, and only the military court would prosecute.

    This separation of powers — that the civilian courts try things that are crimes and the military courts try things that are not crimes but are offenses against the rules of military service — seems eminently reasonable to me. It would also reduce the ongoing problem of unequal punishments for the same crime, and avoid the undue influence issues that kicked off this discussion. If the logistics can be made to work, what’s the downside?

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  50. Mike says:

    @Jack: yes MEJA was a gap filler act designed to allow prosecution of crimes committed overseas in fed court by those accompanying the force. For soldiers, marines etc ucmj was the first choice but if a crime was discovered after he/she was disc hatched u could charge under this

    Just to point out that if a soldier commits a rape in a us state, both the military and the military can prosecute and there is no double jeopardy. As a matter of practice the services don’t prosecute if the state does but rather will administratively separate if the state prosecutes ( usually)

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  51. Mike says:

    And, as w policies, there are exceptions, such as the death penalty case at Bragg years ago where the soldier was acquitted by the state and convicted many yrs later , after recall to active duty, by the army. Can’t think of the name right now. Famous case. Book about it in the 80s

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  52. Megan McArdle says:

    @Rafer Janders: But rape is a state crime, and you have to have a jury of citizens of that state. Which state tries a rape in Afghanistan?

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  53. the Q says:

    So if Obama would have said, I think all “guilty” wife beaters or rapists should be dealt with harshly, thats not a violation?

    Are the Miitary officials so exceptionally fragile and sycophantic that they interpret that as meaning they should find everyone guilty?

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