Unlawful command influence

Unlawful command influence or UCI is a legal concept within American military law. UCI occurs when a person bearing "the mantle of command authority"^[1] pressures—or even appears to pressure—military judicial proceedings. Military commanders typically exert significant control over their units, but under the Uniform Code of Military Justice (UCMJ) a commander must take a detached, quasi-judicial stance towards certain disciplinary proceedings such as a court martial. If UCI has occurred, the results of a court martial may be legally challenged and in some cases overturned.

History

During World War II, mass mobilization resulted in an unprecedented proportion of the US population serving in the armed forces. As a result, a large portion of the population was exposed to military justice, then governed according to the Articles of War. Over 2 million courts martial were performed under the Articles of War.^[2] The reaction was not positive. The public and Congress perceived the Articles of War to grant too much authority to commanders, with harsh and arbitrary results.^[3] Congress enacted the UCMJ to engraft civilian forms of due process into the military justice system, while at the same time maintaining the unique authority of the commander.^[4]

Under the new system, commanders retain significant formal powers over the military justice system. They refer charges to courts martial, choose from among their subordinates to be members of the panel (the jury), and can authorize or waive entirely the punishment adjudged at trial. However, courts martial are now presided over by military judges, and commanders are specifically directed to remain detached from the proceedings through Article 37 of the UCMJ.

Article 37

Article 37 of the UCMJ is the statutory basis for unlawful command influence directly. It states, in part:

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

Legal Test

Courts have devised a complex test to sift cases for UCI. First, courts require that the defense produce some evidence to support an allegation of UCI.^[5] Once a court is satisfied that the defense has met this "burden of production," responsibility shifts to the government to persuade the court, beyond a reasonable doubt, that the UCI did not prejudice the accused. The government could show 1) the underlying facts did not occur, 2) the facts do not constitute improper influence, or 3) if there was UCI, it did not prejudice the defendent.^[6]

Examples of UCI

There are numerous ways that a commander exerts authority, both specifically within the military justice process and over subordinates generally. Each method of asserting authority yields a new way of improperly influencing a judicial proceeding.

Abusing formal powers within the military justice system

A commander (the convening authority) choses the panel (the military analogue to a jury). The commander is supposed to make his selection according to neutral factors^[7] to ensure that the accused has a "fair and impartial panel"^[8] A covening authority commits UCI if he or she, with intent to influence the outcome of the trial, "stacks" the panel through excluding or including members.^[9]

Abusing commander's general authority

Typical Remedies

Although technically UCI is itself punishable under the UCMJ as a violation of regulation, there is no reported case where a commander faced UCMJ action for committing UCI.^[10]

Much more likely is an intervention by the military judiciary. Courts have a full gamut of remedies available. For instance, if UCI in the form of prejudicial statements by a commander is discovered during trial, the trial judge may act to "cure" the UCI simply by polling the members of the panel to determine if they had heard the statements or would be influenced by them.

If the UCI is discovered at the appellate level, the appellate court has discretion to tailor an appropriate remedy. For instance, if the UCI consisted in statements from a commander that a certain punishment was required if a defendant was found guilty, a court could order a retrial on the issue of sentence only. An appeals court could also order a new trial. In the most extreme cases, a court could reverse the conviction with prejudice, effectively changing a guilty verdict to not guilty.

References

^ United States v. Kitts, 23 M.J. 108 (C.M.A. 1986) (court found that a staff judge advocate bore the mantle of command authority and could commit UCI)
^ Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Reivew. 165 (Symposium Issue): 6. Retrieved 8 Feb 2015.
^ Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Reivew. 165 (Symposium Issue): 6. Retrieved 8 Feb 2015. The system appeared harsh and arbitrary, with too few protections for the individual and too much power for the commander. {{cite journal}}: line feed character in |quote= at position 108 (help)
^ Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Reivew. 165 (Symposium Issue): 9. Retrieved 8 Feb 2015. The new system retained many features of the old, including considerable authority for the commander, but attempted to limit the commander's authority and to balance it with a system of somewhat independent courts and expanded rights for service members.
^ United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). "The threshold for raising the issue at trial is low, but more than mere allegation or speculation. United States v. Johnston, 39 M.J. 242, 244 (CMA 1994). In Ayala, 43 M.J. at 300, this Court defined the evidentiary standard for raising the issue as the same as required to raise an issue of fact, i.e., "some evidence." At trial, the accused must show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings."
^ Patricia A. Ham, "Revitalizing the Last Sentinel: The Year in Unlawful Command Influence", The Army Lawyer, May 2005, at 3. See also, United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999), "once the issue of unlawful command influence is raised, the Government must prove beyond a reasonable doubt: (1) that the predicate facts do not exist; or (2) that the facts do not constitute unlawful command influence; or (3) that the unlawful command influence will not prejudice the proceedings or did not affect the findings and sentence."
^ UCMJ Art. 25. The convening authority selects member who are “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.”
^ UCMJ Art. 25.
^ United States v. Upshaw, 49 M.J. 111
^ Davidson, Michael J. A Guide to Military Criminal Law. Naval Institute Press, 1999. p. 129. "Improper interference with the court-martial process is specifically prohibited by Article 37, UCMJ, and punishable pursuant to Article 98. However, the punitive article has proved to be a paper tiger as no reported case exists holding a military superior criminally responsible for unlawful command influence, even when the misconduct appeared blatant."

[1] United States v. Kitts, 23 M.J. 108 (C.M.A. 1986) (court found that a staff judge advocate bore the mantle of command authority and could commit UCI)

[2] Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Reivew. 165 (Symposium Issue): 6. Retrieved 8 Feb 2015.

[3] Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Reivew. 165 (Symposium Issue): 6. Retrieved 8 Feb 2015. The system appeared harsh and arbitrary, with too few protections for the individual and too much power for the commander. {{cite journal}}: line feed character in |quote= at position 108 (help)

[4] Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Reivew. 165 (Symposium Issue): 9. Retrieved 8 Feb 2015. The new system retained many features of the old, including considerable authority for the commander, but attempted to limit the commander's authority and to balance it with a system of somewhat independent courts and expanded rights for service members.

[5] United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999). "The threshold for raising the issue at trial is low, but more than mere allegation or speculation. United States v. Johnston, 39 M.J. 242, 244 (CMA 1994). In Ayala, 43 M.J. at 300, this Court defined the evidentiary standard for raising the issue as the same as required to raise an issue of fact, i.e., "some evidence." At trial, the accused must show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings."

[6] Patricia A. Ham, "Revitalizing the Last Sentinel: The Year in Unlawful Command Influence", The Army Lawyer, May 2005, at 3. See also, United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999), "once the issue of unlawful command influence is raised, the Government must prove beyond a reasonable doubt: (1) that the predicate facts do not exist; or (2) that the facts do not constitute unlawful command influence; or (3) that the unlawful command influence will not prejudice the proceedings or did not affect the findings and sentence."

[7] UCMJ Art. 25. The convening authority selects member who are “in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.”

[8] UCMJ Art. 25.

[9] United States v. Upshaw, 49 M.J. 111

[10] Davidson, Michael J. A Guide to Military Criminal Law. Naval Institute Press, 1999. p. 129. "Improper interference with the court-martial process is specifically prohibited by Article 37, UCMJ, and punishable pursuant to Article 98. However, the punitive article has proved to be a paper tiger as no reported case exists holding a military superior criminally responsible for unlawful command influence, even when the misconduct appeared blatant."

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