31(b)log: I am number 4?

There has been wonderfully vigorous analysis and discussion -- within my department, on this blog, and among other professionals on CAAFlog --?about the recent unpublished NMCCA decision?U.S. v. Lucas.??As?a process-oriented person,?I am?less concerned with outcome and more concerned with?systemic fairness; consequently, the Lucas?holding does not offend me.

I will risk the understatement of the year by saying?that the military justice system is different than most civilian justice systems.? Indeed, the system enshrined in the UCMJ that Congress has bestowed to the military is not just different, it is very different.

One of the primary differences is the number of votes required to convict a servicemember of a serious felony-level crime.? Four.? A general court-martial can consist of five members and conviction requires a 2/3 concurrence -- just?four votes.? Contrast this requirement with the requirement in most jurisdictions to convince 12 people of guilt -- all?12, since the verdict must be unanimous.? That's three times the number of votes required for conviction at court-martial.? Granted, the number of required votes can change as the number of members seated on the panel changes (and I don't know how many members sat on the Lucas panel), but at the end of the day, the statutory requirement is?four.

Another unique aspect of military justice is that every one of the court-martial panel members is subject to military orders and authority.? But not just any authority -- the direct authority of the convening authority (usually the first general officer in the chain of command for GCMs).? This means that when the general speaks,?potential court members are obliged to listen.??For instance, when the general (or higher authority) says that vehicle maintenance is slacking,?command members get the message and vehicle maintenance should improve.? If it doesn't, they will likely hear about the problem again and again until it is fixed.? And rightly so, since slack vehicle maintenance can cause a detrimental impact to mission accomplishment.? Command members take the message to the motor pool and work to fix it.?

Likewise, when the general (or higher authority) says that sexual assault is a problem that needs to be fixed, command members get the message.? Again, for good reason, since sexual assault can cause serious detrimental impacts to the command and mission accomplishment.? But the systemic problem is that?they may carry their interpretation of that?message with them, not to the motor pool, but?to the courtroom and the deliberation room -- that is, sexual assault is a problem that must be fixed and fixing it means conviction.??I?probably don't even have to?say this?is the issue of unlawful command influence (UCI), and?hopefully you can see why it remains a very real concern in any of its forms (actual, apparent, intentional, or inadvertent).

Now, combine these two concerns and you can see that the procedural odds are somewhat stacked against a military accused:? convince just four people who are already primed?on the issue.? I am not suggesting that panel members disregard the evidence and convict innocent people because they think that's what the general (or the institution) wants -- I do not think that they do.? What I am suggesting is that they may adjust their concept of reasonable doubt, consciously or unconsciously, to accommodate what they see as the general's (or institution's) desired?result in a particular case.

This is why the holding in Lucas does not offend me.? The Government?had to convince 2/3 of?a panel that was most likely less than 12 members.? And maybe, just maybe, the panel?was influenced by?a pervasive institutional message (however well-meaning),?concerning the elimination/zero tolerance?of sexual assault -- despite efforts to ferret-out the issue at voir-dire.? So did the members adjust their concept of reasonable doubt to accommodate the institutional message???This is what Article 66 was consciously designed as a safeguard against?-- inappropriate convictions as a result of command influence.

The appellate defense counsel raised the issue of factual sufficiency.? The Lucas court did exactly what?it was?supposed to do -- they applied the correct standard and spelled out?their rationale in detail in the opinion.??They?honored the procedural safeguard to ensure fairness in the process.? Whether they reached the correct outcome is open to debate, and one is free to take issue with their factual analysis and suggest any flaws in their?characterization of facts.

Ultimately, the military justice system is not an outcome-based justice system, and Article 66 is one method to ensure it does not become one.

LtCol Devin A. Winklosky, USMC
TJAGLCS Crim. Law Dept.

Source: http://tjaglcs-adc.blogspot.com/2012/09/i-am-number-4.html

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