Unraveling unlawful command influence.

• Author: Bedi, Monu
• Position: Introduction through I. Development of the Unlawful Command Influence B. The Uniform Code of Military Justice and Commander Misconduct During the Trial Process, p. 1401-1425

Military commanders are not just officers leading soldiers into battle. In the military justice system, they also serve quasi-prosecutorial roles and decide what charges to bring and whether to accept a plea. With this responsibility comes the potential for misconduct, no different than with civilian prosecutors. Commanders too can improperly coerce witnesses or withhold favorable evidence. Enter the "unlawful command influence" doctrine, the military's response to combating this misconduct. While routinely associated with civilian prosecutorial misconduct, the military standard turns out to be very different and seems to better protect against improper influence than its civilian counterpart. What accounts for this difference, given that both standards are designed to ensure a fair and impartial trial?

This Article is the first to raise this varying treatment and explore potential explanations. It ultimately teases out the concepts of "systemic integrity " and "individual autonomy " from the respective stories. The military's focus on procedural protections and concern for the appearance of impropriety reveals a value for systemic integrity, whereas the civilian emphasis on defendant choice and finality of proceedings reveals a value for individual autonomy. This is not simply an academic exercise. These concepts can help frame current controversies surrounding prosecutorial and commander discretion. On the civilian side, scholars and judges alike have widely criticized courts for not doing enough to combat prosecutorial misconduct. On the military side, legislators have railed against commanders for their lack of prosecution of sexual assault crimes. Recognizing which value-individual autonomy or systemic integrity--underlies these practices can better assist necessary reforms.

Table of Contents INTRODUCTION I. DEVELOPMENT OF THE UNLAWFUL COMMAND INFLUENCE DOCTRINE A. Early Beginnings B. The Uniform Code of Military Justice and Commander Misconduct During the Trial Process 1. Common Examples of Unlawful Command Influence: Interference with Witnesses, Jurors, and Court Personnel 2. Commanders Influencing Commanders 3. Civilian Leadership and Unlawful Command Influence 4. Burden of Proof and Prejudice to the Defendant C Expansion by Courts to Apparent Unlawful Command Influence II THE (SEPARATE) CASE OF PROSECUTORIAL MISCONDUCT A. Civilian Prosecutors vs Military Prosecutors B. The More Deferential Civilian Standard 1. The Role of Intent and the Lack of Appearance of Impropriety 2. Shifting Burdens of Proof 3. Appellate Waivers of Civilian Prosecutorial Misconduct Claims C. The Chronic Problem of Civilian Prosecutorial Misconduct III EXPLAINING THE CIVILIAN PROSECUTOR AND MILITARY COMMANDER MISCONDUCT STANDARDS A. Are Commanders Unique or Just In Loco Civilian Prosecutors? 1. Commanders as Non-Lawyers 2. Commanders with Broader Authority than Prosecutors 3. Protecting Military Subordinates from Improper Influence 4. Historical Development and Related Concerns B. The Competing Values of Systemic Integrity and Individual Autonomy C. Lessons for the Future: Reforming Civilian and Military Misconduct Standards CONCLUSION Introduction

At first blush, a civilian prosecutor and military commander may not seem to have much in common. One is a lawyer who holds wide discretionary authority over charging decisions and plea agreements, while the other is a trained officer who leads troops into battle and defends the country. But in the military justice system, commanders also serve quasi-prosecutorial roles and wield the same discretionary authority over charges and pleas. This power naturally brings with it the potential for misconduct, no different than with civilian prosecutors. The military's response to regulating commander misconduct has developed as the doctrine of "unlawful command influence." (1) This Article compares this doctrine with how prosecutorial misconduct is handled in the civilian system. (2) It turns out the two standards are very different even though they are designed to combat the same issue. I explore potential reasons for this varying treatment and ultimately deduce two different underlying frameworks from the respective practices.

The military has a unique role in our society. Its mission is to fight wars and defend against foreign threats. Military commanders, in turn, take on significant responsibility in leading troops toward these ends. Part of this responsibility includes maintaining good order and discipline among the ranks. (3) This means commanders wear many different hats. In addition to their combat role, for example, they serve quasi-judicial roles. In this capacity, they adjudge punishment for minor offenses, (4) pick potential jurors for trial, (5) and grant post-clemency relief. (6) Another central function, and the focus of this Article, is their quasi-prosecutorial role. Commanders hold the discretion that one typically associates with civilian prosecutors. They alone decide what charges, if any, should be brought and the terms of any plea bargain. (7) This means military prosecutors-the ones actually trying the cases-ultimately take their cues from commanders on these key issues. (8)

Commanders, thus, can potentially taint a defendant's right to a fair and impartial trial-much like civilian prosecutors-by, for example, interfering with a juror or withholding favorable evidence. (9) As one military court explains, "[c]ommand influence is the mortal enemy of military justice." (10) Enter the unlawful command influence doctrine-a post-World War 11 law that seeks to curtail commander misconduct and its impact on the fairness of a criminal trial. (11)

The key question in raising such a misconduct claim is whether the conduct prejudiced the defendant. Four features are worth noting: the government always carries the burden of showing that there was no prejudice, courts do not consider a commander's intent in the analysis, the defendant cannot waive her right to this claim on appeal during plea negotiations, and, most notably, courts subject the conduct to an appearance of impropriety test, even if there is no actual prejudice. (12) The combined effect is a doctrine that seems well crafted to deter a commander's improper influence over the trial process. (13)

The somewhat curious part of this doctrine has been its association with prosecutorial misconduct in the civilian system. Military courts and scholars alike have equated or otherwise likened the two types of misconduct. (14) As one military court explains, "[a] commander ... is closely enough related to the prosecution of the case that the use of command influence by him and his staff equates to 'prosecutorial misconduct.'" (15) On one account, this association makes sense since both commanders and civilian prosecutors share the same discretionary authority. The problem, however, is that this likeness has been in name only. While civilian courts also use prejudice as the key factor, the standard turns out to be quite different. Unlike unlawful command influence, with civilian prosecutorial misconduct, the burden of showing prejudice shifts depending on the defendant's actions at trial, courts often consider a prosecutor's state of mind, a defendant can waive her ability to raise a misconduct claim on appeal during plea negotiations, and, perhaps most notably, courts do not engage in an appearance of impropriety test. (16) The combination of these differences creates a system that seems to more easily insulate instances of misconduct. To be sure, scholars and judges alike have all bemoaned the seemingly chronic problem of civilian prosecutorial misconduct and criticized courts' inability to prevent it. (17)

What explains or otherwise justifies the divergent standards? Both the military and civilian systems come from the same adversarial heritage and attempt to promote the same thing-a fair and untainted trial. (18) In fact, readers may be surprised to learn that the military provides a more robust mechanism here than the civilian system. Given the association with prosecutorial misconduct, military courts could have easily adopted the more lax standard to police unlawful command influence. (19) They, however, did not. It won't do to simply say that commanders are not the ones trying cases, since commander...