The Military Justice Divide: Why Only Crimes and Lawyers Belong in the Court-Martial Process

Author:Major Elizabeth Murphy
Pages:129-190
 
FREE EXCERPT
2014] MILITARY JUSTICE DIVIDE & C-M PROCESS 129
THE MILITARY JUSTICE DIVIDE: WHY ONLY CRIMES
AND LAWYERS BELONG IN THE COURT-MARTIAL
PROCESS
MAJOR ELIZABETH MURPHY*
I don’t want just more speeches or awareness programs
or training, but ultimately, folks look the other way. If
we find out somebody is engaging in this stuff, they’ve
got to be held accountable—prosecuted, stripped of their
positions, court-martialed, fired, dishonorably
discharged. Period. It’s not acceptable.1
I. Introduction
Public outcry over sexual assault and the decisions of senior military
leaders with authority under the Uniform Code of Military Justice
(UCMJ) has cast a shadow over military justice. In November 2012,
then-Lieutenant Colonel (Lt Col) James Wilkerson, a former inspector
general at Aviano Air Base, was convicted of sexual assault; three
months later the convening authority, Lieutenant General Craig Franklin,
* Judge Advocate, U.S. Army. Presently assigned as Judge Advocate, New York Army
National Guard (NYARNG), 153rd Troop Command, Buffalo, New York. As of October
2014, Senior Associate, Tully Rinckey PLLC, Albany, New York. LL.M., 2014, The
Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia; J.D., 2004, City
University of New York School of Law; B.A., 2001, University of Michigan. Previous
assignments include: Individual Military Counsel, Trial Defense Services, Fort Bragg,
North Carolina, 2013; Trial Counsel, Area Support Group-Kuwait, Camp Arifjan,
Kuwait, 2012; Judge Advocate, NYARNG, 153rd Troop Command, 2011; Senior
Defense Counsel, Trial Defense Service–Europe, Camp Bondsteel, Kosovo, 2009–2011;
Defense Counsel, NYARNG, 369th Sustainment Brigade, New York, New York, 2008–
2009; Mortuary Affairs Officer, NYARNG, 369th Sustainment Brigade, New York, New
York, 2006–2008; Platoon Leader, NYARNG, 133rd Maintenance Company, Brooklyn,
New York, 2005–2006; Platoon Leader, NYARNG, 102d Maintenance Company,
Brooklyn, New York 2003–2005; Ammunition Officer, NYARNG, 107th Corps Support
Group, New York, New York, 2002–2003; Supply and Services Officer, NYARNG,
107th Corps Support Group, New York, New York, 2001–2002. Member of the bars of
New York, New Jersey, Supreme Court of the United States, Court of Appeals for the
Armed Forces, and the District Court of New Jersey. This article was submitted in partial
completion of the Master of Laws requirements of the 62nd Judge Advocate Officer
Graduate Course.
1 President Barack Obama, Address at the Naval Academy Graduation (May 24, 2013);
see also Michael D. Shear, Obama Calls for ‘Moral Courage’ at Naval Academy
Graduation, N.Y. TIMES, May 24, 2013, http://www.nytimes.com/2013/05/
25/us/politics/obama-naval-academy-commencement.html.
130 MILITARY LAW REVIEW [Vol. 220
overturned his conviction.2 Lieutenant General Franklin may retire as a
Major General after possibly losing a star following “scrutiny of his
handling of sexual assault cases.”3 Congress blocked former convening
authority Lieutenant General (Retired) Susan Helms’s promotion due to
the clemency she granted when she overturned Captain Matthew
Herrera’s 2010 sexual assault conviction.4 She retired from the Air
Force on April 1, 2014.5 These cases have called into question whether
commanders should have the authority to decide the path and ultimate
fate of sexual assault cases. Even if command authority remains intact,
potential loss of a star or the lack of promotion to the next rank in these
aforementioned cases sends the message to senior leaders that severe
professional consequences will result if commanders take what they
think Congress believes to be the incorrect action in sexual assault cases.
The alleged or actual misconduct of senior leaders in the military
also has been an attention-generating topic in the media. On June 14,
2012, then-Colonel James Johnson received what many perceived to be a
light punishment of a $300,000 fine and a reprimand for 15 offenses,
ranging from bigamy to fraud.6 Colonel Johnson’s case was followed by
the investigation of then-General William “Kip” Ward, who was
administratively reduced from a four-star general to a three-star general
2 Letter from Lieutenant General Craig A. Franklin, former Commander, Third Air
Force, to Secretary Michael B. Donley, Secretary of the Air Force (Mar. 12, 2013) (on
file with author) (detailing his reasons for dismissing the charges against Lieutenant
Colonel James H. Wilkerson III); Kristin Davis, Lt. Col. Whose Overturned Sex Assault
Case Sparked Outrage Will Retire, ARMY TIMES, Oct. 2, 2013, http://www.
airforcetimes.com/article/20131002/CAREERS03/310020019/Lt-col-whose-overturned-
sex-assault-case-sparked-outrage-will-retire.
3 Kristin Davis, Lt. Gen. Franklin Will Retire as a 2-star, AIR FORCE TIMES, January 9,
2014, http://www.airforcetimes.com/apps/pbcs.dll/article?AID=/201401091322/ NEWS/
301090021. As of publication of this article, the retirement grade decision had not yet
been determined.
4 Memorandum for Record from Lieutenant General Susan Helms, subject: Disapproval
of Findings in U.S. v. Herrera (24 Feb. 2012); Craig Whitlock, General’s Promotion
Blocked Over Her Dismissal of Sex-Assault Verdict, WASH. POST, May 6, 2013,
http://www.washingtonpost.com/world/national-security/generals-promotion-blocked-
over-her-dismissal-of-sex-assault-verdict/2013/05/06/ef853f8c-b64c-11e2-bd07- b6e0e
6152528_story_1.html; Jeff Schogol, With Nomination Blocked, 3-star Applies for
Retirement, MIL. TIMES, Nov. 8, 2013, http://www.militarytimes.com/article/20131108/
CAREERS03/311080013/Helms-set-retire.
5 Telephone Interview with Lieutenant General (Retired) Susan Helms, former
commander, 14th Air Force Space Command (Mar. 12, 2014).
6 Nancy Montgomery, Former 173rd Commander Handed Reprimand, $300,000 Fine,
STARS & STRIPES, June 14, 2012, http://www.stripes.com/news/former-173rd-
commander-handed-reprimand-300-000-fine-1.180356.
2014] MILITARY JUSTICE DIVIDE & C-M PROCESS 131
and retired after it was determined he engaged in widespread suspicious
spending of government funds amounting to more than $80,000.7 In
November 2012, news broke about an adulterous affair between General
David Petraeus and then-Lieutenant Colonel Paula Broadwell; the affair
also led to an investigation into the personal life of Marine General John
Allen.8 Shortly thereafter, Secretary of Defense Leon Panetta ordered a
Department of Defense (DoD)-wide review of ethics among the senior
officer corps.9 Originally charged with forcible sodomy, on March 20,
2014, Brigadier General Jeffrey Sinclair was sentenced by a military
judge to receive a reprimand and a $20,000 fine after pleading guilty to
charges, including adultery, inappropriate relationships, conduct
unbecoming an officer, and misuse of a government travel card.10 These
stories describing actual or alleged misconduct by senior military leaders
preceded a flurry of proposed legislation calling for changes to the
military justice system.11
The 2012 documentary “The Invisible War” has had an impact on
military justice. The film provides detailed accounts of women of all
services who had been sexually assaulted in the military, and most of
their attackers were not prosecuted.12 In April 2012, then-Secretary of
Defense Leon Panetta mandated that all sexual assault cases be withheld
to officers with, at a minimum, special court-martial convening authority
and in the pay grade of O-6.13 Several of the victims in the film met with
7 Lolita C. Baldor, William Ward, Four-Star General Demoted for Lavish Spending,
Ordered to Repay $82,000, HUFF. POST, Nov. 13, 2012, http://www.huffingtonpost.
com/2012/11/13/william-ward_n_2122379.html.
8 Robert Burns, Petraeus-Broadwell Probe Spreads to Gen. Allen, ASSOCIATED PRESS,
Nov. 13, 2012, http://www.military. com/daily-news/2012/11/13/ petraeus-broadwell-
probe-spreads-to-gen-allen.html.
9 Elisabeth Bumiller, Panetta Orders Review of Ethics Training for Military Officers,
N.Y. TIMES, Nov. 15, 2012, http://www.nytimes.com/2012/11/16/us/panetta-orders-
review-of-ethics-training-for-officers.html.
10 Jeffrey Collins, Army General Fined, Reprimanded in Sex Case, ASSOCIATED PRESS,
Mar. 20, 2014, http://news.msn.com/crime-justice/army-general-fined-reprimanded-in-
sex-case?ocid=ansnews11.
11 See, e.g., Military Justice Improvement Act of 2013, S. 967, 113th Cong. (2013);
Better Enforcement for Sexual Assault Free Environments Act of 2013, S. 1032, 113th
Cong. (2013); Combating Military Sexual Assault Act of 2013, H.R. 2002, 113th Cong.
(2013); Military Sexual Assault Prevention Act of 2013, S. 548, 113 Cong. (2013); STOP
Act, H.R. 1593 113th Cong. (2013).
12 THE INVISIBLE WAR (Chain Camera Pictures 2012).
13 Id.; Memorandum from Sec’y of Def., to Secretaries of the Mil. Dept’s et al., subject:
Withholding Initial Disposition Authority Under the UCMJ in Certain Sexual Assault
Cases (20 Apr. 2012).

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