Ft. Hood case reveals limited view of military judge's power

The Killeen Daily Herald reports on an interesting development in a Ft. Hood general court-martial in which a male soldier was accused of sexually assaulting another male soldier. The accused was convicted and sentenced to three years' confinement. Before the sentence was announced, the military judge stated that he wanted to set aside the findings of guilty but lacked authority to do so under the Uniform Code of Military Justice, and that he would recommend that the convening authority do so. Prof. Geoffrey S. Corn of the South Texas College of Law commented:

“Turning over a guilty finding is very uncommon to begin with,” said Corn, adding the jury may have “felt some sense of obligation to return some conviction of a sexual offense because of the current atmosphere.”

The military judge's quandary -- if his understanding of his lack of power was correct (see below) -- suggests an unwarranted limitation on the independence of courts-martial. If a trial judge is convinced a conviction should be set aside, and the record of trial has not yet been authenticated (as was the case here), he or she would seem to have the power to set it aside under R.C.M. 1102(a)(2), rather than having to make a non-binding recommendation to a non-lawyer convening authority:

An Article 39(a) session under this rule may be called, upon motion of either party or sua sponte by the military judge, for the purpose of inquiring into, and, when appropriate, resolving any matter that arises after trial and that substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may also call an Article 39(a) session, upon motion of either party or sua sponte, to reconsider any trial ruling that substantially affects the legal sufficiency of any findings of guilty or the sentence. The military judge may, sua sponte, at any time prior to authentication of the record of trial, enter a finding of not guilty of one or more offenses charged, or may enter a finding of not guilty of a part of a specification as long as a lesser offense charged is alleged in the remaining portion of the specification. Prior to entering such a finding or findings, the military judge shall give each party an opportunity to be heard on the matter in a post-trial Article 39(a) session. [Emphasis added.]

In federal district court, the defense may move for a judgment of acquittal within 14 days after a guilty verdict or discharge of the jury, whichever comes later, under Fed. R. Crim. P. 29(c). Why should military practice be different?