Posts Tagged With: Chuck Hagel

Obama’s Comments On Military Sex Abuse Constitute “Undue Command Influence”

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. 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.

 

Categories: Military Justice | Tags: , , , , , , , | 1 Comment

Military Commanders Wake Up To Broad Reach Of Proposed Changes By Civilians To Military Justice Code

English: General Martin E. Dempsey, USA, 18thC...

English: General Martin E. Dempsey, USA, 18thChairman of the Joint Chiefs of Staff. (Photo credit: Wikipedia)

English: Kirsten Gillibrand, New York's junior...

English: Kirsten Gillibrand, New York’s junior United States Senator (Photo credit: Wikipedia)

WASHINGTON (AP) — The Uniform Code Of Military Justice (UCMJ) gives American military commanders  substantial power to discipline the troops they lead. However an epidemic of sexual assaults in the armed forces has Congress considering changes to that well established authority.

The big question is by how far and how wide?

Army Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, and the four-star officers atop each service are scheduled to testify June 4th at a Senate hearing on congressional proposals to modify theUCMJ with the aim of staunching the escalating number of sexual assaults that have outraged the military and the public.

Dempsey and other military leaders say they are open to legislative solutions to the problem. But, they are deeply concerned that too drastic an overhaul by Congress will lead to unintended and alarming consequences.

Curbing too sharply a commander’s ability to decide how and when to punish or pardon service members will send a message there is lack of faith in the officer corps, and that in turn will undermine the efficiency and effectiveness of the military in peacetime and war, Dempsey warned in a recent letter to Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee.

Paradoxically, the Defense Department’s failure so far to change the military’s male-dominated culture is driving a vocal group of mainly female lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., to advocate aggressive reforms.

Tinkering at the edges, they argue, won’t produce the seismic shift needed to send the message that sexist attitudes and behaviors will no longer be tolerated. Victims need to be confident that if they report a crime their allegations won’t be discounted and they won’t face retaliation.

The latest in a string of allegations came May 31, 2013.

The Pentagon said the U.S. Naval Academy is investigating allegations that three football team members sexually assaulted a female midshipman at an off-campus house more than a year ago, and a lawyer for the woman says she was “ostracized” on campus after she reported it.

The Naval Academy investigation follows several recent arrests: A soldier at the U.S. Military Academy at West Point was charged with secretly photographing women, including in a bathroom. The Air Force officer who led the service’s Sexual Assault Prevention and Response unit was arrested on charges of groping a woman. And the manager of the Army’s sexual assault response program at Fort Campbell, Ky., was relieved of his post after his arrest in a domestic dispute with his ex-wife.

The Pentagon estimated in a report last month that up to 26,000 military members may have been sexually assaulted last year, up from an estimated 19,000 assaults in 2012, based on an anonymous survey of military personnel. While the number of sexual assaults members of the military actually reported rose 6 percent to 3,374 in 2012, thousands of victims are still unwilling to come forward despite new oversight and assistance programs aimed at curbing the crimes, the report said.

Those numbers and outrage over two recent decisions by Air Force generals overturning juries’ guilty verdicts in sexual assault cases are generating support for Gillibrand’s proposal to largely strip commanding officers of the power to toss out a verdict, a change initially recommended in April by Defense Secretary Chuck Hagel and backed by Dempsey, the service chiefs and many members of Congress.

But Gillibrand’s bill goes much farthertoo far, according to Dempsey. It would remove commanders from the process of deciding whether serious crimes, including sexual misconduct cases, go to trial. That judgment would rest with seasoned trial counsels who have prosecutorial experience and hold the rank of colonel or above.

Her legislation, which has 18 cosponsors that include four Republicans, also would take away a commander’s authority to convene a court-martial. That responsibility would be given to new and separate offices outside the victim’s chain of command.

“The current system allowing commanders to have sole discretion in the disposition of legal matters is clearly broken and has a chilling effect on reporting,” said Gillibrand, who chairs the Armed Services Committee’s personnel subcommittee. “We must … increase accountability within the system by removing the influence of the chain of command in the prosecution of intolerable crimes.”

In a May 20 letter to Levin, Dempsey said taking away a commander’s ability to convene a court-martial would “radically” alter a principal tenet of military law dating back two centuries and merged more than 60 years ago into a single Uniform Code of Military Justice.

“While Congress has modified the UCMJ from time to time, it has never removed commanders from the military justice system,” Dempsey wrote. “The consequences of such a decision would be far-reaching and extraordinarily damaging to the nation’s security.

Whether all or parts of Gillibrand’s Military Justice Improvement Act are added to the defense policy bill for the 2014 fiscal year remains to be seen.

But changes are coming. The GOP-led House Armed Services military personnel subcommittee used Hagel’s April recommendation as a starting point and then went further in a bill it approved two weeks ago.

In addition to taking away the authority to reverse courts-martial rulings, the subcommittee voted to establish dismissal or dishonorable discharge as the mandatory minimum sentence under military law for service members found guilty of rape, sexual assault, forcible sodomy or an attempt to commit those offenses. Commanders also would be barred from reducing or commuting the minimum sentence except in situations where the accused substantially aided the government in the investigation or prosecution of another assailant.

The House bill, however, stops short of taking those cases outside the chain of command, as Gillibrand’s bill proposes. Rep. Michael Turner, R-Ohio, who co-chairs the House Military Sexual Assault Prevention Caucus, said the focus should be on preventing sexual assaults, not scrapping central elements of the current military justice system.

The hearing June 4 may indicate how far the Senate Armed Services Committee is willing to go. A final plan will eventually be produced after any differences between the House and Senate are resolved.

Levin has not publicly stated his position on Gillibrand’s proposal but has made clear he is dissatisfied with the Pentagon’s efforts to eradicate what he has described as the “plague of sexual assaults in the military.”

And Sen. Claire McCaskill, D-Mo., an Armed Services Committee member and critic of the Pentagon’s handling of sexual assault cases, isn’t co-sponsoring Gillibrand’s bill, backing instead many of the changes the House panel approved.

McCaskill told reporters last month that she’s not opposed to Gillibrand’s legislation but wants to be sure Congress doesn’t squander a chance to pass a bill because of partisan differences over its scope. “I am tired of trying to legislate around the gridlock in Congress,” she said.

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Hard Cases Make Bad Law. Dissatisfaction With One Case, No Reason To Change Military Code Of Justice.

 

Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany convened a court-martial to try Lt. Col. James Wilkerson III on charges of, among other things, sexual assault of a female, not his wife. Lt. Col. Wilkerson was tried by a jury and found guilty as charged. In performing his duties as Convening Authority under the Uniform Code of Military Justice (UCMJ), Lt. Gen. Franklin set aside the sexual assault conviction.

 

The February 2013 decision ignited a firestorm on Capitol Hill and drew scrutiny to the separate set of laws governing military members, known as the UCMJ. Following his review of the case, Defense Secretary Chuck Hagel proposed removing the convening authority from commanders in major cases.

(He did not specify what he thought would constitute a major case.)

 

Lt. Gen. Franklin defended his decision in a six-page letter he submitted to the service in response to the uproar. He said accusations that his motivation was to protect a fellow fighter pilot are “preposterous.” Accusations that he doesn’t understand sexual assault or take the crime seriously “are complete and utter nonsense,” he wrote. Allegations that his decision was influenced by his previous role commanding a unit the pilot later served in “are equally preposterous,” he wrote.

 

In the letter, Franklin, says he struggled with the decision. However, after he reviewed the evidence, he found the defendant, Lt. Col. James Wilkerson III, and his wife, Beth, more credible than the alleged victim, Ms Kimberly Hanks, who has since come forward publicly to discuss the matter.

Approving the jury’s finding of guilt “would have been an act of cowardice,” Franklin wrote. “I hold a genuine and reasonable doubt that Lt. Col. Wilkerson committed the crime,” he wrote. “My court-martial action to disapprove findings and to dismiss the charges was the right, the just, and the only thing to do.”

 

Wilkerson, then the inspector general at Aviano Air Base in Italy and a former F-16 pilot, was found guilty of multiple charges to include aggravated assault. He was sentenced to a year in prison and dismissal from the service before Franklin overturned the conviction.

 

Ms Hanks accused him of fondling her breasts and genitalia as she slept in his guest bedroom, according to court documents. The two met at a club with groups of friends after a rock concert that was held on base, organized by the USO and featuring the alternative rock band, Seether, according to her testimony.

 

Ms Hanks is a divorcee. She worked as a civilian contractor in the medical clinic on the base. She alleged that she previously did not know Lt. Col.Wilkerson but some how she wound up at his home in Roverado. Ms Hanks said she awoke in a bedroom with Lt. Col.Wilkerson when his wife entered the room, turned on the lights and said: “What the hell is going on?”

 

Ms Hanks testified that the woman then ordered her to, “Get the hell out of my house.”

In his letter, Lt. Gen. Franklin said he was persuaded in part by the many letters of clemency from family, friends and colleagues of the Lt. Col. Wilkersons that “painted a consistent picture of a person who adored his wife and 9-year-old son, as well as a picture of a long-serving professional Air Force officer.”

 

Lt. Gen. Franklin also makes a point to cast doubt on Lt. Col. Wilkerson’s failed polygraph test.

“A polygraph is only an investigative tool to assist in the potential focus of the investigation and/or to attempt to elicit admissions of guilt,” he wrote. “It is not a ‘lie-detector test,’ nor is it ‘pass’ or ‘fail.’ Because of the inherent unreliability of polygraphs, they are entirely inadmissible in a court-martial.”

 

As one would expect, lawmakers and supporters of sexual-assault victims were shocked by Lt. Gen. Franklin’s letter.

 

“This explanation crystalizes exactly why the convening authority should not have the unilateral ability to overturn a jury verdict — and why we need legislation that restricts their ability to do so,” Sen. Claire McCaskill, D-Mo., said in a statement. “This letter is filled with selective reasoning and assumptions from someone with no legal training, and it’s appalling that the reasoning spelled out in the letter served as the basis to overturn a jury verdict in this case.”

 

In light of the case, McCaskill introduced legislation that would curtail the authority of military commanders to dismiss jury convictions against sex offenders.

 

Protect Our Defenders, a nonprofit based in Burlingame, Calif., called for Lt. Gen. Franklin to be dismissed from the military. “Lt. Gen. Franklin made a deeply flawed and inappropriate decision,” the group’s president, Nancy Parrish, said in a statement. “Rather than rely on the credibility determinations of the senior members of the jury he selected, Franklin chose to accept the word of Wilkerson’s supporters.”

 

Lt. Col. Wilkerson will remain on active duty and is being transferred to Davis-Monthan Air Force Base, Ariz., where he will become chief of flight safety for the 12th Air Force (Air Forces Southern), according to Master Sgt. Kelly Ogden, a spokeswoman for the unit. He is expected to arrive later this month or in early May.

 

Defense Secretary Chuck Hagel on April 8 said he would ask Congress to pass legislation that would prevent commanders from overturning convictions without explanation.

In 2011, less than half of the reported 3,200 sexual assaults in the military resulted in disciplinary action, according to the Defense Department. The number of actual sexual assaults each year is probably closer to 19,000, based on anonymous surveys of active-duty service members.

 

 

                       (U. S. Air Force Academy cadets charged with sexual assault.)

 

The number of sexual assaults at military academies has been on the rise. No cadet tried or convicted of sexual assault has had his conviction set aside by the Convening Authority.

Sexual assault reports at the Air Force Academy jumped nearly 60 percent during the last academic year while the prevalence of the crime remained about the same, according to a new Defense Department study.

The results, which mirror the two other service institutions — the Military Academy and the Naval Academy — signal greater victim confidence but show that efforts to reduce sexual assaults among future military leaders have been unsuccessful.

Air Force cadets made 52 sexual assault reports during the 2011-2012 year, up 58 percent from 33 in 2010-2011. They also accounted for 65 percent of the 80 reports made at all three academies, despite sim­ilar student populations.

In 44 of the 80 reports, victims said they were victimized by a fel­low cadet or midshipman, the study said. Twenty-five incidents occurred on academy grounds.

 

 

 

(U. S. Coast Guard Academy cadet, Webster Smith)

A cadet at the U. S. Coast Guard Academy was convicted of sexual assault in 2006. It was the first court-martial of a cadet in the history of the U. S. Coast Guard. Cadet Webster Smith was only six months away from graduating when he was accused, tried, and convicted. He protested his innocence. His case was appealed all the way to the U. S. Supreme Court, but the Supreme Court refused to grant a review of the conviction. Cadet Smith’s petition was dismissed without comment by the Supreme Court.

 

 

 

The Webster Smith Story is an American tragedy. It is not just the story of a Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy. The Webster Smith case was a litmus test for justice in America.

 

                                              (Ariana Klay, former USMC officer)

Lt. Ariana Klay, a U. S. Naval Academy graduate, served as a protocol officer for the U. S. Marine Corps Barracks, Washington, DC. She alleged that while there, she was sexually harassed by a lieutenant colonel, a major and a captain. She said she was gang-raped by a Marine officer and his civilian friend, a former Marine.

Lt. Klay alleged that the Marine officer threatened to kill her and told his friend he would show him “what a slut she was” and “humiliate” her. After she reported the alleged rapes and subsequent harassment, the Marine Corps investigation ruled that she welcomed the harassment because “she wore makeup, regulation-length skirts as a part of her uniform and exercised in running shorts and tank tops.”

The Marine Corps did not punish any of those who were accused of sexually harassing Lt. Klay. One of her alleged harassers was granted a waiver by the Corps that permitted him to get a security clearance despite accusations of hazing and sexual misconduct against not only Lt.  Klay but many others. He was selected to be in a nationally televised recruitment commercial while he was still under investigation.

The Marine Corps finally court-martialed one of Lt. Klay’s alleged attackers but didn’t convict him of rape, instead finding him guilty of adultery and indecent language (a common escape by military courts from the rape charge). The military court ruled that Lt.  Klay “consented” to having sex with the men despite the evidence that the accused threatened to kill her.Lt. Klay has attempted suicide since the alleged rapes and harassment and has been diagnosed with post-traumatic stress disorder.

Categories: Military Justice | Tags: , , , , , , , , , | 3 Comments

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