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Opinion: Trial taint from unlawful command influence

We have made the point in prior blog posts that, given today’s political climate in which many prominent persons are strongly focused on the subject of sexual assault in the military, it is imperative that fairness be firmly on display in all military criminal proceedings.

It is obvious why that must be the case. It is critically important, of course, that an alleged victim of crime in the military be fully heard by authorities and have a fair opportunity to present a case and pursue justice. That same fairness must necessarily extend to an alleged perpetrator of crime, who must be adjudged innocent unless facts fairly uncovered through an untainted investigation justify a guilty verdict in a court-martial.

In other words, the military justice system commands integrity only to the extent -- as noted by two contributors in a recent media article on military law -- that it “is fair, transparent, reliable and law-bound.”

Those writers -- both former military officers -- state that so-called “unlawful command influence” can undermine military justice by impermissibly influencing military juries. Recent examples have been cited of senior officials making harsh comments about sexual assault in the military that endorse a get-tough approach toward defendants. Such language can force jury members to feel pressure in their decision making and tilt toward a pro-accuser bias even in cases where the facts do not reasonably warrant such a stance.

One of those officials is President Obama himself, who serves as the nation’s Commander in Chief. The president recently stated that any person “engaging in” sexual abuse should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

A recent sexual assault conviction was actually thrown out by a military appeals court based on pre-trial comments made by the Marine Corps commander. He stated a view that 80 percent of all claims brought by alleged victims “are legitimate.”

The above-cited authors call that comment “simply unacceptable” and note how statements that can be adjudged as unlawful command influence taint disciplinary proceedings and outcomes.

No participant in a military trial should be publicly prejudged in any manner that can subsequently influence a trial proceeding. Facts alone should determine guilt and innocence.

Both accusing parties and persons accused of crimes deserve nothing less.

Source: The Hill, "Leaders must watch their words on military sexual assault," James Joyner and Butch Bracknell, June 13, 2014

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