Unlawful command influence

Unlawful command influence (UCI) is a legal concept within American military law. UCI occurs when a person bearing "the mantle of command authority" ^[1] uses or appears to use that authority to influence the outcome of 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. Outside of certain formal actions authorized by the UCMJ, ^[2] a commander using their authority to influence the outcome of a court-martial commits UCI. 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. Over 2 million courts-martial were performed under the then-governing Articles of War, ^[3] and large portion of the population was exposed to military justice. 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. ^[4] Infamously, some commanders would issue reprimands called "skin letters" to members of courts-martial who had been too lenient. ^[5] 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. ^[6]

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 in some cases can overturn guilty verdicts and authorize or waive entirely 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. 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. ^[7] 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 defendant. ^[8]

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. ^[9]

Abusing formal powers within the military justice system

A commander (the convening authority) chooses the panel (the military analogue to a jury). The commander is supposed to make his selection according to neutral factors ^[10] to ensure that the accused has a "fair and impartial panel" ^[11] A convening authority commits UCI if he or she, with intent to influence the outcome of the trial, "stacks" the panel through excluding or including members. ^[12]

Abusing commander's general authority

The "inherent power and influence of command" ^[13] creates numerous avenues for unlawful command influence.

Commands can and have committed UCI by:

• directly or indirectly criticizing panel members who find a defendant not guilty or adjudge a "lenient" sentence; ^[14]
• intimidating or otherwise discouraging witnesses from testifying on behalf of an accused; ^[15]
• suggesting or directing specific sentences for certain crimes (often through policy letters or public pronouncements); ^[16]
• publicly humiliating or ostracizing defendants before they have been found guilty; ^[17]
• sending inquiries to a military judge seeking justification of decisions. ^[18]

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. ^[19]

Much more likely is an intervention by the military judiciary. Trial and appeals 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. A trial judge may direct that a commander must issue a clarifying statement or retraction. ^[20] Or a trial judge could dismiss charges entirely. ^[21]

If the issue of UCI is raised 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. ^[22]

References

1. United States v. Stombaugh, 40 M.J. 208, 211 (C.M.A. 1994). "While the influence may well be unlawful and its effect just as harmful, there is a distinction between influence that is private in nature and influence that carries with it the mantle of official command authority ... Each of the unlawful-command-influence cases has involved some mantle of command authority in the alleged unlawful activity." See also,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. For instance, if subordinate commanders forward a case to a higher commander for resolution, the subordinate commander is required to give a recommendation on proper disposition of a case. Commanders also formally make a determination on whether a case will be tried at court martial.
3. Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Review. 165 (Symposium Issue): 6. Retrieved 8 Feb 2015.
4. Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Review. 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.
5. A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice: Hearing on H.R. 2498 Before a Subcomm. Of the House Comm. On Armed Services, 81st Cong. 722, 785 (1949)(example "skin letter" entered into the Congressional record during legislative debate over the UCMJ)
6. Cooke, John S. (September 2000). "Fiftieth Anniversary of the Uniform Code of Military Justice" (PDF). Military Law Review. 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.
7. 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."
8. 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."
9. In the words of CAAF, there are a "multitude of situations in which superiors have unlawfully controlled the actions of subordinate in the exercise of their duties under the UCMJ." United States v. Gore, 60 M.J. 178, 185 (C.A.A.F. 2004) (quoting United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994))
10. 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."
11. UCMJ Art. 25.
12. United States v. Upshaw, 49 M.J. 111, 113 (C.A.A.F. 1998) ("Court stacking ... is 'a form of unlawful command influence'"); see also, United States v. Lewis, 46 M.J. 338; United States v. Hilow, 32 M.J. 439, 440 (C.M.A. 1991)("We hold that the deliberate stacking of the pool of potential members for appellant's court-martial by a subordinate of the convening authority violated Article 37, UCMJ").
13. United States v. Harvey, 64 M.J. 13, 17 (C.A.A.F. 2006).
14. See, e.g.United States v. Youngblood, 47 M.J. 342 (1997) (commander criticized previous commanders for "underreacting" to misconduct created bias among panel members); United States v. Reynolds, 40 M.J.198, 200 (1994) (commander criticizes outcomes of courts martial in staff meeting).
15. See, e.g. United States v. Gleason, 43 M.J. 69 (1995); United States v. Levite, 25 M.J. 334 (C.M.A. 1987).
16. United States v. Hawthorne, 22 C.M.R. 83 (C.M.A. 1956)(policy of General Court Martial for soldiers with two prior convictions was UCI); United States v. Martinez, 42 M.J. 327, 331-334 (1995) (a "get tough on DUI" policy letter with predetermined punishments was UCI)
17. Note, public humiliation can be command influence to the extent that the purpose is to influence potential witnesses and panel members. However, it is more typically dealt with as a violation of UCMJ, Article 13, which prohibits punishment prior to conviction. See, e.g.United States v. Cruz, 25 M.J. 326, 329 (C.M.A. 1987)(raising the possibility of command influence through humiliation, but deciding issues on Article 13 grounds).
18. United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976);
19. 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."
20. See, e.g.United States v. Douglas 68 M.J. 349, 353 (C.A.A.F. 2010)(military judge directed writing of a memorandum in the name of commanding officer, to be "utilized by defense counsel and the [a]ccused to facilitate the securing of character statements on behalf of the [a]ccused.").
21. United States v. Gore, 60 M.J. 178, 189 (C.A.A.F. 2004). "the military judge correctly found that unlawful command influence existed ... It was within the military judge's discretion to determine that dismissal with prejudice was the appropriate remedy in light of the egregious conduct of the CA that prejudiced Appellant's court-martial."
22. See, e.g., United States v. Lewis, 63 M.J. 405, 416 (C.A.A.F. 2006) ("Having found that the unlawful command influence in this case has not been cured, we cannot let the findings and sentence stand. Although it is drastic, we believe that the only remedy to cure the unlawful command influence in this case is to reverse the decision of the lower court, set aside the findings and sentence, and dismiss the charges with prejudice.")

Further reading

• Ham, Patricia. Senior Officer Legal Orientation Handbook. The Judge Advocate General's Legal Center and School, 2005. Chapter 7.
• Ham, Patricia. "Still Waters Run Deep? The Year in Unlawful Command Influence". The Army Lawyer , June 2006.
• Morris, Lawrence J. "“This Better Be Good”: The Courts Continue to Tighten the Burden in Unlawful Command Influence Cases". The Army Lawyer , May 1998.
• Kiel, John L., Jr. "They Came In Like a Wrecking Ball: Recent Trends at CAAF in Dealing With Apparent UCI". The Army Lawyer , January 2018.