“It’s completely inappropriate,” Eugene Fidell, who teaches military law at Yale Law School, said of the senators’ demands. “If they’re serious about this, they should change the statute.”
Boxer and Shaheen suggest that legislative changes might, in fact, be a possibility, something Fidell says could be useful if handled in a balanced fashion. He did not, however, mean the kind of bill to be introduced Wednesday by Rep. Jackie Speier, D-Calif., which would strip away a commander’s ability to dismiss convictions.
The political hubbub over Franklin’s actions, moreover, might create a misleading impression about the frequency with which commanding officers overturn convictions. Marine Corps Col. John Baker, the chief defense counsel of the Marine Corps, said in an interview that it was very rare for convictions to be dismissed. Fidell agreed in an interview that “it’s rare, though it does happen.”
The Uniform Code of Military Justice grants considerable clout to commanding officers, called in legal cases the “convening authority.” The power is both at the front end, before trial, and at the back end, after trial. They may proceed with a prosecution or, as happened in the Wilkerson case, dismiss a conviction for what the uniform code specifies may be “for any or no reason.” These pretrial and post-trial powers help balance each other.
“The pieces of the system have to hang together,” Fidell said, adding that changing the post-trial power without addressing pretrial powers would “be a severe blow to the logic of the system.”
This may be particularly true in a political climate where commanding officers feel pressure to prosecute sexual assault allegations. In the Marine Corps, for instance, tough talk by the commandant has complicated dozens of sexual assault cases, as defense attorneys repeatedly raise the claim of unlawful command influence.
The McClatchy review of previously unreported documents from 68 sexual assault cases at Georgia’s Fort Benning, North Carolina’s Camp Lejeune, California’s Camp Pendleton and several other bases nationwide found commanding officers sometimes using their prosecutorial discretion to proceed with weak cases. In 30 of the 68 cases, the defendants were acquitted or were found guilty only of lesser charges.
In a number of the acquittals McClatchy reviewed, commanding officers had proceeded with prosecution despite explicit objections or serious questions raised by investigating officers.
In 2007, for instance, a soldier accused a private first class with the 1st Battalion of the 507th Parachute Infantry Regiment at Fort Benning of sexually assaulting her while she was drunk. The Columbus, Ga., police department looked into it and declined to prosecute. The Army’s investigating officer recommended that some charges be brought, but not rape. The Fort Benning commander, nonetheless, proceeded with a prosecution on rape and other charges.
The accused soldier was acquitted on all charges.
In 2009, a Navy petty officer first class who was temporarily stationed at Norfolk, Va., was accused of rape by a sailor. The investigating officer recommended against filing rape charges, noting “inconsistencies” in the alleged victim’s story. The commanding officer’s legal adviser, though ultimately recommending prosecution, likewise cited in an April 2010 memo “serious issues concerning the credibility of the alleged victim and the plausibility of her story.”