Retired U.S. Air Force chief prosecutor Col.
Don Christensen writes in
The Atlantic concerning White House chief of staff
John Kelly's defense of former colleague
Rob Porter:
John Kelly’s over-the-top support for Porter was wrong. But Chief of Staff Kelly was only acting as General Kelly would have. His statements highlight the fundamental flaw of the military’s commander-controlled justice system. Commanders might genuinely believe a subordinate is incapable of abuse, or they might find the subordinate too valuable to the mission not to support in court. The former is naive, the latter reprehensible—and both are reason to remove commanders from the equation entirely. Just as many members of the public recognized that Kelly’s bias disqualified him from impartially judging his aide, the country should recognize that commanders are unqualified to pass judgment on their own Rob Porters.
[Standard disclaimer: I offer this comment solely in my personal capacity. It should not be imputed to any other person or entity.] The underlying article states, "In 2015, lawmakers passed legislation prohibiting the use of the good-soldier defense in sexual assault, rape, and a few other types of cases. But the defense is still used elsewhere. It is still permissible in domestic-abuse cases, for example . . . ." Is that right?
ReplyDeleteConsistent with section 536 of the NDAA for FY 2015, Pub. L. No. 113-291 (2014), Executive Order 13696 amended Mil. R. Evid. 404. That amendment provided that "[g]eneral military character" isn't a pertinent character trait for offenses alleged under 15 specified UCMJ punitive articles. Assault is not among them. But the amended rule also provides that general military character isn't a pertinent character trait at the findings stage for "[a]ny other offense in which evidence of general military character of the accused is not relevant to any element of an offense for which the accused has been charged." Given that limitation, it isn't apparent to me that general military character evidence would be admissible in a domestic assault case.
--Dwight Sullivan