Academics Continue Their Push to Remove Protections for Accused Servicemembers in Sexual Assault Cases
A recent article (see below) presents the position that Military appellate courts should no longer have the authority to decide cases based on factual sufficiency. The article describes in detail the different stance that military courts have as compared to most federal and state courts regarding factual sufficiency. While I disagree with the overall opinion that Military appellate courts should no longer have the authority to review a case of factual sufficiency, the important take away for the Servicemember is that the need for competent and experienced counsel, at the trial, post-trial, and appellate stages, has never been higher. Members of congress and academics continually push for changes in the military justice system, but few of the voices behind the changes have actually observed a recent sexual assault Court-Martial.
I. A Defense Attorney’s Analysis of: Lisa M. Schenck, "Just the Facts Ma’am": How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims Are "Incapacitated," 45 Southwestern Law Review 522 (2016).
Appellate review for factual sufficiency is a necessary protection for the military accused. When an appellate court reviews a case for factual sufficiency, the court is taking a fresh look at the facts presented at trial and determining whether a reasonable jury (or “panel” as they are called in Courts-Martial) could have found the appellant guilty beyond a reasonable doubt. Some of the criticisms of this authority highlighted in the article are (1) the appellate court does not have the benefit of observing witness testimony at trial, (2) that almost all federal and state appellate courts do not have this much authority, and (3) this authority essentially enables the appellate court to grant no deference to the military panel and substitute its judgement for that of the factfinder. Certainly, if a military appellate court overturns a conviction for factual (in)sufficiency, the court is substituting their judgement for that of the panel. Such a result, however, is not a bad thing.
The author’s opinion is largely based on cases involving sexual assault convictions by means of incapacitation of an alleged victim. The poorly defined meaning of “incapacitation” is at the heart of the problem. The article qualifies its opinion to remove this authority from the military appellate courts by concurrently arguing that there needs to be a clearly defined definition of “incapacitated.” We could not agree more with this point, but don’t hold your breath. Such a thing is easier said than done.
With all that in mind, the author argues that a military accused no longer needs the added protection of an appellate court’s authority to overturn a case based on factual sufficiency. To support this position, the author highlights, among other things, the improved quality of defense representation and due process afforded in the military system since the inception of the UCMJ in the 1950s, the significant effort to combat unlawful command influence in the military justice system, and the general reliability of a military panel. With more protection in place to ensure that a military accused receives a fair trial, the author argues that our system no longer needs such an unencumbered review by the appellate courts.
Regarding the issue of unlawful command influence and reliability of a panel in sexual assault verdicts, there is no fair comparison to civilian jurisdictions. Even under current military law, it is legal (not unlawful command influence) for a commander to require every Servicemember (and thereby every panel member) to take sexual assault training. There is no civilian equivalent of this. Could you imagine if the governor of your state required every potential juror in the state to take sexual assault training prior to your trial for sexual assault? And then the judge tells you that that despite the sexual assault training they received, you will still receive a fair trial because the judge will instruct them to disregard what they heard in that training? Additional protection at the appellate level would not be such a bad thing in that case.
Absent from the article, and the primary basis of my disagreement with this position, is the fact that military panels, unlike federal and state jurisdictions, are not required to have a unanimous verdict for a finding of guilty. In fact, in many circumstances, the panel only needs a 2/3 majority to convict and can have as few as three members. Most if not all civilian jurisdictions require a unanimous verdict with a set number of jurors. The meaning of this significant deviation from the civilian sector is that a military panel’s verdict is not as representative of the views of the members as is a civilian jury.
I am not arguing that Courts-Martial should require a unanimous verdict from a panel. The needs of the military to ensure minimal disruption to the mission simply could not withstand the immeasurable burden of requiring a unanimous verdict in every case. The increase in “hung juries” and the additional deliberation time per Court-Martial alone would suffocate the military justice system. Rather, I support the position that with a 2/3 guilty verdict from a panel in a felony case, additional appellate court authority to ensure that there was a fair trial, is appropriate.
II. The pendulum has not stopped moving towards the Government.
The military defense community is somewhat a victim of our own success. The single greatest driving force behind military justice reform is the fact that the defense community wins more than the government thinks we should. Our firm in particular has extraordinary success with sexual assault cases.
That success causes the government to attempt to “swing the pendulum” back to their side. They are doing this by changing the law, changing the rules, and reducing the protections that accused Servicmemebrs have. Unfortunately, too many lawmakers rely on the narrow-minded statistics of conviction rates, rather than a more substantive analysis of the strength of the cases the Government choses to bring.
The continued need for protection of the accused is obvious to any observer of the average sexual assault trail. Therein lies the problem. Congressional and academic case analysis is conducted on high profile outliers, not the everyday sexual assault trial.
As congress and the military consider measures to remove/reduce protections afforded to the accused Servicemember, it has never been more important to have qualified and experienced civilian counsel at every stage of representation. If the military appellate courts ever do lose the authority to review a case for factual sufficiency, they only protection will be to make sure the military panel gets the verdict right at the Court-Martial.