Military Justice 101 - Part VII
The Court-Martial Process
UNLAWFUL COMMAND INFLUENCE
Unlawful Command Influence (UCI) has frequently been called the "mortal enemy of military justice." UCI occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.
While some types of influence are unlawful and prohibited by the Uniform Code of Military Justice (UCMJ), other types of influence are lawful, proper, and in certain circumstances a necessary part of leadership. The prohibition against UCI does not mean that a commander may abdicate responsibility for correcting disciplinary problems. Rather, the commander must vigilantly insure that the command action does not encroach upon the independence of the other participants in the military justice system.
Rules In General. Here are some general rules regarding Unlawful Command Influence: The Commander may not order a subordinate to dispose of a case in a certain way. The law gives independent discretion to each commander at every level possessing authority to convene courts-martial. A senior commander may not try to influence the exercise of that discretion. However, a senior commander may:
- Personally dispose of a case at the level authorized for that offense and for that commander
- Send a case back to a lower-level commander for that subordinates independent action
- Send a case to a higher commander with a recommendation for disposition
- Withdraw subordinate authority on particular types of cases
- Order charges pending at a lower level transmitted up for further consideration, including, if appropriate, referral
- Mentor subordinates, but do so recognizing that there exists the potential for misinterpreting the commanders intentions
The commander must not have an inflexible policy on the disposition of a case or the punishment to be imposed. A convening authority must consider each case individually on its own merits
A commander who is the accuser, may not thereafter act as a convening authority to refer the case to a court-martial. The commander is considered to be "disqualified" to act as a convening authority and must forward the charges to a superior convening authority. A commander is considered to be an accuser when he or she:
- Formally signs and swears to the charges on the charge sheet (prefers the charges), or
- Directs that the charges be signed and sworn to by another, or
- Has an interest, other than an official interest, in the prosecution of the accused
The commander may neither select nor remove court members in order to obtain a particular result in a particular trial. Selections must be based upon the criteria contained in Article 25, UCMJ. Those criteria include: age and experience, education and training, length of service, and judicial temperament
- No pressure may be placed on the military judge or court members to arrive at a particular decision
- No person may invade the independent discretion of the military judge. Commanders may not question or seek explanation or justification for a judges decision
- Witnesses may not be intimidated or discouraged from testifying
- The court decides punishment. An accused may not be punished before trial, but may be placed in pretrial confinement if there is a risk of flight, if the accused poses a serious threat to the community, or if the accused is likely to engage in further misconduct
POST-TRIAL REVIEW PROCEDURES
Record Of Trial and Authentication. After trial, a record of the trial proceedings is prepared by the court reporter. It is provided to both the trial counsel (prosecutor) and the defense counsel for correction, and is then authenticated (certified as accurate) by the military judge. The nature of adjudged sentence determines the type of record of trial that is required, verbatim or summarized. For a verbatim record of trial, the sentence must include one of the following punishments: dismissal, dishonorable discharge, bad-conduct discharge, confinement for more than six months, forfeiture of more than two-thirds pay per month or forfeitures for more than six months. Other records of trial are summarized. Although some very limited post-trial actions can be taken without the authenticated record of trial, the review process requires the completed record of trial.
Effective Date of Punishments. Any period of confinement included in the sentence of a court-martial begins to run from the date the sentence is adjudged unless deferred or suspended. Adjudged reductions in rank and adjudged forfeitures of pay and allowances are effective fourteen days after the sentence is adjudged or upon action of the convening authority, whichever is sooner. However, any sentence which includes confinement for more than six months or death, or confinement for six months or less and a dishonorable or bad-conduct discharge or dismissal results in a mandatory forfeiture of pay fourteen days after the sentence was adjudged, even if no forfeitures were adjudged. Under these requirements, a general court-martial results in total forfeiture of pay and allowances (allowances are separate payments for housing and food) during confinement, and a special court-martial results in forfeiture of two-thirds pay (but not allowances) during confinement. When the accused (defendant) has a family, the convening authority may waive the mandatory forfeitures for up to six months and re-direct pay and allowances for support of the accuseds family. Other potential punishments (e.g., fines, restriction to specified limits, hard labor without confinement) are effective when approved in the convening authoritys action. Dismissals, dishonorable discharges and bad-conduct discharges must be approved by the convening authority, but cannot be ordered executed (issued) until appellate review is completed.
Deferment Requests. Upon written application of the defendant, the convening authority may defer adjudged confinement, forfeitures or reduction in rank. Deferment is a postponement of the beginning of the sentence. It is not a suspension of the sentence, and it is not a form of clemency. The accused has the burden of showing that his interest and the community's interests in deferment outweigh the community's interests in imposition of punishment. In making the decision, the convening authority may consider, among others, the following factors: the probability of flight; the probability of commission of other offenses; intimidation of witnesses; interference with the administration of justice; the nature of the offenses (including the effect on the victim); the sentence adjudged; the command's immediate need for the accused; the effect of deferment on good order and discipline in the command; and, the accused's character, mental condition, family situation, and service record. Deferments end when the convening authority takes action, when the punishment is suspended, when the deferment expires by its own terms, or by other rescission.
Staff Judge Advocate (SJA) Review and Defense Response. A formal legal recommendation is required to be prepared in all general courts-martial and in special courts-martial where a bad- conduct discharge is adjudged. An impartial Staff Judge Advocate signs the recommendation. That recommendation is served on the accused's attorney and the accused, who have ten days to submit comments. The ten-day period can be extended for an additional twenty days. These comments can address legal errors, provide facts supporting reversal of the findings of guilty or clemency. The accused and his or her attorney determine the scope of clemency matters. Clemency matters may include a repeat of matters presented at trial, other evidence of good character, post-trial statements from friends, or relatives, evidence of financial hardship, and evidence of the adjudged sentences effect upon the accuseds family. These comments, if any, along with the recommendation of the Staff Judge Advocate are forwarded to the convening authority for action.
Convening Authority Options and Action. The convening authority performs the initial step in the review process and has extensive discretion when taking action on a case. In taking action, the convening authority either approves the findings and sentence or may change either or both of them. He or she may dismiss any offense or change the finding of guilty of any offense to one of a lesser-included offense. The convening authority may disapprove the findings of guilty or all, or any part of, a legal sentence. However, court-martial findings of "not guilty" are final when adjudged and may not be later changed by the convening authority. He or she may reduce or suspend a sentence or change the punishment to one of a different nature so long as the severity of the punishment is not increased. The convening authority may approve a sentence only if he or she determines that it is warranted by the offense(s) and appropriate for the accused soldier. For example, the convening authority may reduce or eliminate any confinement, may change a dishonorable discharge to a bad-conduct discharge, and may reduce a sentence of death to imprisonment. Prior to taking action, the convening authority must consider the results of trial, the recommendation of the Staff Judge Advocate, and any matters submitted by the defense attorney and the accused. In general, the appellate process does not begin until the convening authority has taken action.
of United States Marine Corps