Military courts struggle with unlawful command influence

McClatchy Washington BureauMarch 16, 2014 

The specter of unlawful command influence continues to haunt military courts, particularly with regard to charges of sexual assault.

Marine Corps trial judges are still dealing with the consequences of the commandant’s imprudent rhetoric, as spelled out in a new-ish U.S. Navy-Marine Corps Court of Criminal Appeals decision. The Army, meanwhile, is struggling through the troubled prosecution of a star general, as a detailed New York Times account spells out.

Terrell D. Jiles, a court-martialed Marine Corps staff sergeant, presents the latest example. But, because Jiles ultimately pled guilty to charges of sexual harassment and assault, the Navy-Marine Corps appellate court was able to sidestep the core questions.

Jiles, as have dozens of others, argued that the commandant, Gen. James Amos, improperly tilted the legal playing field with the so-called “Heritage Brief” speeches demanding action against sexual assault. And, as the trial judge in his case agreed, Amos’s rhetoric did present the appearance of unlawful command influence.

As the appellate court summed up, the trial judge concluded that:

A disinterested observer, fully informed of all the facts and circumstances could reasonably conclude that the Commandant’s influence is such that prospective court members may either consciously or subconsciously believe that eighty percent of Marines accused of a sexual offense are guilty and/or must be discharged from the Marine Corps.”

Not cool.

But the trial judge, the appellate court further concluded, was “ vigilant and proactive” in crafting remedies, such as increased defense challenges. Most remarkably, the trial judge, a colonel, directed a series of interrogatories toward the commandant, a general. In any event, the question was rendered “irrelevant” once Jiles pled guilty, the appellate court reasoned.

CAAFlog addresses the case here.

The U.S. Court of Appeals for the Armed Forces may yet have to confront the core questions raised by the commandant’s rhetoric, if it agrees to hear an appeal raised in another case involving former Sgt. Roger Easterly.

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