Apparent Unlawful Command Influence: An Unworkable Test for an Untenable Doctrine

• Author: Vincent A. Marrazzo
• Position: Juris Doctor, Notre Dame Law School, 2022; Bachelor of Arts in Intelligence Studies, Information Technology, and Religion, Diplomacy, & International Relations, Mercyhurst University, 2019
• Pages: 611-626

Apparent Unlawful Command Influence: An

Unworkable Test for an Untenable Doctrine

Vincent A. Marrazzo*

Unlawful command influence is a “malignancy that eats away at the fairness

of [the] military justice system.”

—United States v. Gleason

1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611

I. APPARENT UCI: ORIGINS & APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . 613

A. The Origins of Apparent UCI . . . . . . . . . . . . . . . . . . . . . . . . 613

B. C.A.A.F.’s Approach to Apparent UCI: The Boyce Standard 615

II. THE BOYCE STANDARD AND APPARENT UCI ARE UNSUPPORTED BY THE

UCMJ . .

.

............................................ 618

A. The Boyce Standard is Unworkable Because Article 37

Requires Prejudice to the Accused in UCI Cases . .. . . . . . . . 618

B. Apparent UCI Is an Untenable Doctrine Because of Article

37’s Intentionality Requirement . . . . . . .. . . . . . . . . . . . . . . . 620

III. ADDRESSING DAMAGE TO THE PERCEPTION OF FAIRNESS: HOW TO

PROTECT APPEARANCES WITHOUT APPARENT UCI . . . . . . . . . . . . . . . 622

A. Well-Reasoned, Objective Opinions and the Appellate Process

Will Protect Appearances When the Accused Was Not

Prejudiced . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 622

B. Explicitly Recognizing Apparent (or Unintentional) UCI in the

UCMJ Will Protect Appearances—and the Rights of the

Accused—When the Accused Was Prejudiced . . . . . . . . . . . . 624

CONCLUSION . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 626

INTRODUCTION

The appearance of fairness in the judicial system is of the utmost importance. In

particular, the public must trust that defendants in a criminal prosecution are being

treated fairly at all stages of the trial and appellate process. If the public does not

believe in the independence of the judiciary, our system of checks and balances

erodes, and the concomitant branches of government—especially the Executive

* Juris Doctor, Notre Dame Law School, 2022; Bachelor of Arts in Intelligence Studies, Information

Technology, and Religion, Diplomacy, & International Relations, Mercyhurst University, 2019. The

ideas in this Article benetted from comments from Jenae Longenecker, Matthew Goldammer, and

Andrew Sayer. I am also grateful to Judge Margaret Ryan and Judge Liam Hardy, whose Military Justice

Seminar inspired this project. © 2022, Vincent A. Marrazzo.

1. United States v. Gleason, 39 M.J. 776, 782 (A.C.M.R. 1994), rev’d on other grounds 43 M.J. 69

(C.A.A.F. 1995).

611

Branch—will not enforce judgements made by the federal courts.

2

The appear-

ance of fairness to defendants is of particular importance in the military justice

system, where the threat of unlawful command influence (UCI) looms large.

The hierarchical structure of the military creates an environment where UCI

can easily thrive. In the military, the inculcated obedience to orders from superior offi-

cers has the danger of impacting how those involved in the court-martial process con-

duct themselves.

3

Specifically, courts, scholars, and policymakers have always been

concerned with individuals involved in the military prosecutorial process–from the

convening authority to the servicemembers on the panel–“[making] decisions in a

case . . . based on fealty to their [superior officers] instead of on the facts and law.”

4

For example, during and after World War II, there were a significant number of

courts-martial in which the commander’s influence resulted in draconian enforcement

of the Articles of War (the precursor to the Uniform Code of Military Justice

(UCMJ)).

5

In fact, the War Department’s Vanderbilt Report, produced in 1946, con-

cluded “that in many instances the commanding officer who selected the members of

the courts made a deliberate attempt to influence their decisions.”

6

This conduct not

only undermined the rights of defendants, but negatively impacted the public’s per-

ception of the military justice system and its ability to conduct itself fairly.

In response to the tendency of military commanders to manipulate criminal

prosecutions of servicemembers, Congress created the military’s Article I appel-

late court system in 1950 to provide civilian oversight of the military justice sys-

tem and protect against UCI.

7

Congress’ creation of the Court of Military

Appeals (now the Court of Appeals for the Armed Forces) was specifically

intended to “erect a further bulwark against impermissible command influence.”

8

Additionally, Congress explicitly prohibited unlawful command influence in

2. See THE FEDERALIST NO. 78, at 402 (Alexander Hamilton) (George W. Carey & James McClellan

eds., 2001) (explaining that the courts “have neither FORCE nor WILL, but merely judgment; and must

ultimately depend upon the aid of the executive arm even for the efcacy of its judgments”).

3. See Rachel E. VanLandingham, Military Due Process: Less Military & More Process, 94 TUL. L.

REV. 1, 7 (2019) (“Th[e] inculcated obedience to orders is a dangerous dynamic in relation to a criminal

justice system owned and operated by those giving orders.”).

4. Id. at 4; see also Stephen I. Vladeck, Unlawful Command Influence and the President’s Quasi-

Personal Capacity, 96 TEX. L. REV. ONLINE 35, 36 (2018) (“UCI is such a central issue to the military

justice system because of those courts’ unique structure—in which virtually all of the key players in a

criminal trial, from the lawyers to the witnesses to the members of the jury to the judge, are uniformed

servicemembers who could have both legal and professional reasons not to act against the wishes of

those above them in the chain of command.”); LISA M. SCHENCK, MODERN MILITARY JUSTICE: CASES

AND MATERIALS 55 (3d ed. 2019) (“It is not difficult to imagine that, without constant vigilance,

subordinate participants in the military justice system could be influenced by their superiors, resulting in

unfairness to the accused.”).

5. See Michael Scott Bryant, American Military Justice from the Revolution to the UCMJ: The Hard

Journey from Command Authority to Due Process, 4 CREIGHTON INT’L & COMP. L. J. 1, 2 (2013)

(describing “abuses within the U.S. military justice system during World War II,” including “harsh

sentences disproportionate to the offense, and despotic control of the proceedings by the commander”).

6. ADVISORY COMM. ON MIL. JUST., REPORT OF WAR DEPARTMENT 6–7 (1946).

7. See VanLandingham, supra note 3, at 7.

8. United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986).

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