As I thought it might, the post about the Army’s head sexual assault prosecutor being fired because a decade’s old email suggested that defense attorneys would have to fight hard for the rights of accused servicemen being targeted by politicians “with an agenda” quickly attracted intense commentary. (Oddly, or perhaps not, the story has been largely ignored by mainstream media. My mining of obscure legal ethics sources has its benefits.) No commentary was more illuminating or useful than this, the Comment of the Day by 77Zoomie, on the post, “Army Policy Is Apparently That Its Prosecutors Must ‘Believe All Women’”…

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Some thoughts from someone who has both prosecuted and defended sexual assault cases in military courts.

Although it is a difficult concept for most civilian attorneys to grasp, the military justice system that was put in place in the early 1950s (as the Uniform Code of Military Justice) Is designed to accomplish two, sometimes contradictory, tasks. The first is to provide constitutional due process to service members accused of any of a specific list of crimes delineated by the UCMJ. Military defense counsel are obviously crucial in this process because they are frequently the only individuals with the capability to adequately overcome the tremendous advantage possessed by the prosecution on a military installation. Prosecution authority rests ultimately in a series of commanders at various levels. These individuals have unlimited resources at their disposal, including the ability to select potential jurors and to influence proceedings in any one of a thousand different ways, some obvious but most not. Military defense attorneys are generally removed from the formal chain of command so that local commanders cannot affect the career of a zealous defense counsel working to protect the interests of her client.

The second purpose of the military justice system is to promote good order, morale, and discipline within the ranks. This means that commanders have available to them procedures short of a formal trial proceeding by which they can enforce discipline. Article 15 of the UCMJ is one such mechanism that allows for a quasi-judicial proceeding before the commander, with or without the presence of a defense attorney, that is designed to quickly deal with the minor criminal infractions occurring in units every day. Commanders have significant autonomy and authority under this system and may elect to charge, ignore, or otherwise deal with issues that would normally be a matter of criminal concern to their military legal advisors. My recollection is that perhaps 5 or 6 times a year I confronted situations where my recommendation was to charge an individual under the UCMJ and the commander rejected it in favor of some other type of less severe action. Less frequent were the circumstances where a commander was adamant that we convene a court-martial even in circumstances where the evidence was less persuasive and I was much less confident of a guilty verdict. But in all circumstances, it was the commander who made the call, frequently in conjunction with advice and counsel from her own commander higher up in the military food chain.

It’s the second purpose that was creating heartburn for a number of female senators back in the 00s and early teens when this Army JAG wrote his e-mail. Commanders are given wide discretion in terms of the charges and the disposition of those charges. Military juries are perhaps some of the most educated and discerning groups before which I had the pleasure of practicing. They are also well-versed in military culture and generally have a wealth of experience dealing with disciplinary issues in their own units, either as observers or as actual commanders themselves. Perhaps just as important, the military population is not comparable to the civilian population in terms of conduct and bad motivation. Most of those people never make it past the initial recruitment process and are generally weeded out over the term of their first few years in service.

All of which is a long-winded way of saying that sexual assault and rape in the military looks completely different than it does in a civilian criminal court setting. Outright, predatory, sexual assaults are relatively rare; the vast majority of cases that I dealt with as a prosecutor and the few cases that I dealt with as a defense attorney involved ambiguous conduct on the part of both parties, almost always fueled by excessive consumption of alcohol. Cases of forcible rape were noteworthy and got the immediate attention of military law enforcement and command.

Given the less straightforward aspects of most of these sexual assault cases, commanders frequently found themselves trying to assess guilt or innocence with highly equivocal evidence. Those cases that went to trial confronted those military juries with the same issues. Often the accused was a person with an exemplary record who was alleged to have acted in a way that was completely inconsistent with their prior years of service. Accordingly, commanders would make a “split the baby” kind of analysis, electing to not formally charge individuals, reduce sentences imposed by juries, or figure out some other mechanism to deal with the problem short of formal criminal charges.

Progressives will say that much of this reluctance was due to some type of old boy network and that the males who predominate in the service are unlikely to hold their fellow men culpable except in the most extreme circumstances. Over the course of perhaps 30 or 40 sexual assault investigations during my JAG career, I never saw anything resembling this type of bias. It probably occurs, but my experience is that it is very limited.

But for several female lawmakers, caught up in the early stages of the “believe all women” movement, any acquittal, any resolution short of providing complete relief to a complaining party meant that the system was rotten and needed to be overhauled. From holding up or threatening to hold up all promotions for a particular service (yes, this was long before Senator Tuberville’s actions, check out Senator Schroeder’s threats following Tailhook) to working to remove the commander’s discretion in dealing with these cases, these officials worked to eat away at the protections for accused service members, both by altering procedural protections and by working to send a message to the command team that “not guilty” verdicts would endanger careers and funding for much-desired weapon systems and support.

It was into this environment that this Lieutenant Colonel sent his e-mail. Perhaps the most pernicious and dangerous issue within the military justice system is something called “command influence.” Command influence occurs when a commander or someone with significant authority intervenes in the judicial process by ordering jurors to vote for a specific result, or by establishing policies mandating particular results in military legal cases, or by threatening service members’ careers if specified results are not achieved. The actions of these female lawmakers and their threats to senior military leadership were clearly aimed at eliminating “not guilty verdicts” in sexual assault cases and limiting the discretion of commanders to deal with these issues in any other way than a trial, where the results would be effectively guaranteed. In other words, command influence at its very worst.

The Secretary of the Army is unworthy of her position by virtue of this action. She absolutely fails to understand that civilian control of the military does not mean that military lawyers must act to abrogate the statutory and constitutional rights of their clients in service to a particular ideology or political philosophy. I’m sorry that this general did not stand up and act like a big dog, telling this woman that she cannot undercut the ability of defense counsel to zealously defend their clients, even in Army courts. With any luck, the story will be offered as evidence of command influence on upcoming sexual assault trials and will be sufficient to overturn guilty verdicts.