Monday, June 2, 2014

Unlawful command influence in United States v. Wilkerson

U.S. Air Force Lt Gen Craig Franklin
The American court-martial United States v. Wilkerson made big waves last year when the convening authority, Air Force Lieutenant General (Lt Gen) Craig Franklin, dismissed charges of sexual assault and conduct unbecoming an officer against Lieutenant Colonel (Lt Col) James Wilkerson after a panel convicted him of those charges and sentenced him to dismissal and one year of confinement.

The case put attention on the problem of sexual assault in the military and the role of the commander in military justice. Those developments are well-covered and this post will not retread them. Instead, I’ll explore less trodden ground and argue that the crux of the case was unlawful command influence (UCI).

The Wilkerson case turns out to be a helpful aid in diagnosing when a convening authority has “other than an official interest” in a case. This tenet of UCI asks whether “a reasonable person would impute to [the convening authority] a personal feeling or interest in the outcome.” Anyone with “other than an official” interest is an accuser, and accusers are ineligible from convening general or special courts-martial. Following from this, an accuser who carries out convening authority duties is engaged in unlawful command influence.

Published military appellate opinions about UCI from convening authorities with “other than an official interest” focus on those who display animus towards an accused. Wilkerson demonstrates how the opposite response, favoritism, can be just as problematic.

The Wilkerson case includes a treasure trove of internal documents released in response to public and political attention on the case. These documents helped illuminate the convening authority’s manner of deliberation in ways that normally aren’t available to the public, and caused many to question his impartiality. 

U.S. Air Force Lt Col James Wilkerson
The releases show that both the convening authority and the accused were officers in the same tight-knit F-16 fighter pilot community. In his clemency submission (warning: big file) the accused emphasized this common background with the convening authority and noted that they flew a combat mission together in Iraq. While deliberating, Lt Gen Franklin received emails from a close military advisor that the accused’s “integrity is airtight” and “character is unshakeable,” and another email from a retired group of F-16 pilots decrying the trial as an unfair assault on the fighter pilot community. In a memorandum justifying why he dismissed the charges, Lt Gen Franklin said that part of his reasonable doubt came from the accused’s selection for promotion to full Colonel, service as a wing inspector general, and description as a doting father and husband. The convening authority seemed aware of how his actions would be perceived as favoritism, and addressed this in his written statement by emphasizing that he did not personally remember the accused. However, after dismissing the charges he wrote in an internal email, “I intend to get him back to a flying assignment as soon as possible”; “Certainly after he [the accused] and Beth [the accused’s wife] have had a chance to discuss, I would like to know what he wants to do next”; and, “Please make sure Colonel Wilkerson knows he can contact me . . . about the way ahead for his next assignment.”

Wilkerson will never become UCI caselaw because the actions of the convening authority were favorable to the accused and the approved sentence fell below the threshold of appellate scrutiny. The case is a useful lesson in how perceptions matter: if an accused’s privilege or personal connections to judicial officials garner him more favorable treatment than he would otherwise enjoy, the integrity of the military justice system suffers, just as it suffers when a convening authority displays a personal hostility towards the accused. In either case, an accuser is improperly serving as a convening authority.

The lesson is simple: judicial officials must either be impartial or recuse. 

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