Civilian Court-Martial Defense Lawyer: “Beating a Dead Horse”…ACCA finds Actual and Apparent UCI (Unlawful Command Influence) in U.S. v. Schloff

Military Defense Lawyer (Former JAG Attorney) News:

In the past couple weeks, I have posted about U.S. v. Vargas and U.S. v. Barry.  So, posting about Unlawful Command Influence (UCI) in U.S. v. Schloff seems like I’m “beating a dead horse” about the terrible issues eroding the basic fairness of the current military justice system, particularly in alleged rape and sexual assault cases.  

While the post does seem repetitious, I think it’s more concerning that there continues to be a dead horse for the beating.  That’s an ugly idiom (particularly since I’m a horse lover), but Unlawful Command Influence is an ugly cancer in the military justice system…that is spread by the current political environment in which the military justice system exists. 

     

So, here is U.S. v. Schloff.  Another UCMJ Article 120 case.  The CAAFlog case page appears here:

http://www.caaflog.com/category/september-2014-term/united-states-v-schloff/ 

The Army Court of Criminal Appeals (ACCA) overturned the conviction in Schloff and remanded the case based on actual and apparent UCI.  This was affirmed by the Court of Appeals for the Armed Forces (CAAF).  Of note, ACCA held:  

“The UCI was a ‘palpable cloud throughout the deliberations’ left to permeate in each panel member’s decision-making process.”  

Of concern was the following:

“At the beginning of deliberations on findings of appellant’s court-martial, the president and senior ranking member of the panel, [COL JW], made a statement to the effect that based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault. He also asked a question to the effect of, ‘How does the Chief of Staff of the Army’s current emphasis on sexual harassment affect the findings and our decision in this matter?’ [COL AM] made some unspecified but similar comments or comments indicating agreement with [COL JW].

All the members had the ability to hear these statements and all members were engaged in the deliberations. The members debated these comments, with [two of the members] in disagreement with [COLs JW and AM]. The discussion regarded the general climate on sexual assault in the Army and in Korea at the time and Army policy. [LTC JV] argued that the case should be decided on the merits and that ‘the outside’ shouldn’t be brought into the deliberations, or words to that effect. The members then debated the evidence and voted on findings.”

Yes, you read that correctly.  The court members’ (jury) deliberation began with the O-6 President of the panel and another O-6 commenting on how the Army couldn’t seem weak or soft in dealing with cases such as they were about to consider…and raised the Army Chief of Staff’s emphasis on sexual misconduct – all contrary to the instructions of the Military Trial Judge!  The court members then discussed this issue as they deliberated about the accused's case.

Not only is this grossly improper, but bear-in-mind that we rarely learn about what occurred behind the closed door of the deliberation room.  Who knows how many times a similar discussion has taken place in other military cases that were unknowingly and unfairly tainted?  At least in this case the UCI was exposed, and this resulted in the conviction being overturned. 

I’m just going to end this blog post with a sigh………..

By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
http://www.militaryadvocate.com

Blog postscript: I (attorney Richard V. Stevens) am a former active duty military lawyer (JAG). My perspectives and advice, therefore, are based upon my experience as military defense lawyer and as a civilian criminal defense lawyer practicing exclusively in the area of military law and military justice. This blog addresses issues in military law, military justice, military discipline, military defense, court-martial practice, the Uniform Code of Military Justice (UCMJ) and other military and/or legal topics. Nothing posted in this blog should be substituted for legal advice in any particular case. If you seek legal advice for a particular case, please contact The Law Offices of Richard V. Stevens for a free consultation. These military defense law offices are located in the Northern Florida/Georgia areas, but the military defense representation is worldwide – when necessary, the attorneys travel to wherever the client is stationed around the world.