Tuesday, April 16, 2013

Article 60 of the Uniform Code of Military Justice: Is Hagel’s Proposed Change an Appropriate Response?


On April 8, 2013, new Defense Secretary Chuck Hagel announced[1] that he has ordered the Pentagon to prepare legislation to Congress that would change Article 60 of the Uniform Code of Military Justice (UCMJ).[2]  Sec. Hagel wants to amend the UCMJ to take away the ability of convening authorities to change the findings of a court-martial for major offenses that would normally require a court-martial. A convening authority is the military officer responsible for appointing court members and the military judge for a court martial. Sec. Hagel also wants to require convening authorities to provide written decisions for their decisions to overturn minor offenses.  Sec. Hagel’s statement said “[t]hese changes . . . would help ensure that our military justice system works fairly, ensures due process, and is accountable.”
Sec. Hagel made this statement following a review of Article 60 by the Pentagon’s general counsel.  Sec. Hagel ordered the review in March 2013 after Lt. Gen. Craig Franklin,[3] in his role as convening authority, overturned the sexual assault conviction of Air Force Lt. Col. James Wilkerson.  A military jury at Aviano Air Base, Italy convicted Wilkerson in November of aggravated sexual assault and sentenced him to a year in jail, and dismissed him from the service without pay.

Sen. Claire McCaskill (D-Mo)  has repeatedly condemned Franklin’s action and proposed legislation following the Franklin’s action last month that has Sec. Hagel’s and the Pentagon’s support.[4]  Despite this there has been no public pronouncement from Sec. Hagel or the Air Force leadership thus far that Franklin’s justification for dismissing the conviction was flawed.  Sec. Hagel also said he is reviewing other options and actions to strengthen sexual-assault prevention and response efforts, and he would announce his decisions soon.

Lt. Gen. Franklin has vigorously defended his decision to overturn the conviction of Lt. Col. James Wilkerson.  On March 12, 2013, Franklin released a six-page letter detailing his reasons for overturning Wilkerson’s conviction.[5]  Franklin reviewed the record thoroughly, but Franklin admittedly relied upon evidence that was inadmissible during the court-martial. Additionally, though he tried to dispel the notion he was showing favoritism to an officer in one of his former commands, Franklin made reference to the fact that Wilkerson was a distinguished and long serving officer and that made him trustworthy.  Ultimately, Franklin acknowledged that the case broke down to a he said she said incident and used Wilkerson’s trustworthiness as a long serving officer to conclude that the prosecution had not met its burden.  Franklin’s letter is rife with scenarios where he concludes perceived inconsistencies in the victim’s and Wilkerson’s stories in favor of Wilkerson.  Franklin resolves and finds explanations for all the inconsistencies in Wilkerson’s story while dismissing the victim’s story because of similar or less severe inconsistencies.  Ultimately Franklin’s explanation reveals that he sought to act as a supreme juror and gave virtually no respect to the court-martial’s procedural requirements or the decisions of the court-members.

Senator McCaskill, a former prosecutor, roundly dismissed Franklin’s reasons stating:

"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. 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."[6]

Wilkerson’s attorney released a statement[7] defending Lt. Gen. Franklin’s decision. Wilkerson’s attorney also condemned Sen. McCaskill for criticizing Lt. Gen. Franklin’s decision without having actually review the trial record and calling the Senator’s and Hagel’s response a “knee-jerk reaction.”  Lt. Gen. Franklin, in further defense of his decision, released the Wilkerson case’s entire trial record on the Air Force’s Freedom of Information Act webpage.[8]  Franklin continues to be criticized for his decision and many enlisted members of the military perceive this decision as another case of an officer using Article 60 to protect another officer.  As Sen. Lindsay Graham (R-SC), an Air Force Reserve Judge Advocate, pointed out in during a March 13th, 2013, Senate Hearing,[9] very few convictions and sentences are overturned by the convening authority.  However, as Sen. Kirsten Gillibrand (D-NY) pointed out during the same hearing, the statistics show that officer defendants benefit from Article 60 at much higher rates than the enlisted do.

Nonetheless, Lt. Gen. Franklin was well within his authority to dismiss the findings of the court-martial.  Under UCMJ Article 60, the convening authority has unfettered discretion as a matter of command prerogative to set aside a finding of guilty or modify a sentence, so long as a sentence is not increased.  See United States v. Nerad[10], 69 M.J. 138 (CAAF 2010); United States v. Finster[11], 51 M.J. 185, 186 (CAAF 1999); United States v. Travis[12], 66 M.J. 301, 303 (CAAF 2008) (“Clemency is a highly discretionary command function of a convening authority.”) As stated earlier, no one from the Defense Department has said that Lt. Gen. Franklin violated any procedure in dismissing the findings of the court-martial.

However, if we assume that Lt. Gen. Franklin abused his authority to “show the pilot community he had their backs,”[13] then it is necessary to determine if Sen. McCaskill’s and Sec. Hagel’s proposed response is appropriate.  A few concerns that will need to be resolved if this legislation is to move forward.  First, doesn’t restricting the power to grant clemency and approve or disapprove of findings and sentences restrict due process instead of improve due process by eliminating a line of appeal?  Second, is the joint committee that annually reviews the UCMJ and recommends changes to Congress going to change its thorough process to satisfy the desires of Sen. McCaskill and other advocates?  Finally, could allowing Department of Defense review of Article 60 clemency grants and requiring the convening authority to specify in writing reasons for disapproving findings in serious cases in order to create an appellate record be an equally effective and less intrusive way to resolve the concerns raised in this case?

However this proceeds, given the recent push against the military’s ineffective response to sexual assault cases, it seems likely the change will occur.  Congress and the Defense Department must ensure that it is not intruding too far into a military justice system that, with some serious and notable exceptions, works well.  Congress must remember that just because the system has some differences from the civilian criminal justice system that the UCMJ is an effective and fair tool for military justice.

Ryan Hatley
Blogger, Criminal Law Brief

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