Two sexual assault courts-martial for Navy men at Pearl Harbor are now postponed because of a comment made by President Barack Obama.
The trial issues — related to a statement by Obama, the commander in chief, that sexual assault perpetrators should be dishonorably discharged — potentially amount to “unlawful command influence” and are part of a spate of military cases nationwide in which the defense is being raised.
The fear is that court-martial boards, aware of such statements from superiors, would be swayed to give the defendant less than a fair trial and that the public would view any convictions and discharges as the boards merely following orders.
In one of the Hawaii cases, Petty Officer 2nd Class Ernest Johnson, a crew member on the destroyer USS Russell, was scheduled to go on trial June 17 on charges that he sexually assaulted another male sailor who was asleep or intoxicated, according to court records. The alleged assault happened Sept. 9.
Obama’s comment came May 7, the day the Pentagon reported that the estimated number of military personnel victimized by sexual assault had surged by about 35 percent over the past two years.
In answer to a reporter’s question, Obama said: “I have no tolerance for this. I expect consequences. So I don’t just want more speeches or awareness programs or training but folks look the other way. If we find out somebody’s engaging in this stuff, they’ve got to be held accountable, prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”
Three days later Johnson’s defense counsel sought to dismiss all charges due to “unlawful command influence.”
Cmdr. Marcus Fulton, a Navy judge at Pearl Harbor, refused to dismiss the case but concluded there was apparent unlawful command influence by the president. As a remedy, he removed from possible consideration bad-conduct and dishonorable discharges in the event of a conviction.
The government prosecution appealed the decision to the Navy-Marine Corps Court of Criminal Appeals, which halted Johnson’s impending trial.
Fulton issued a similar finding — and a similar stay in proceedings — in a sexual assault case involving Seaman Javier Fuentes Jr., a member of Patrol Squadron 47 at Kaneohe Bay, according to the appeals court.
Fuentes was accused of assaulting a woman on Maui on June 30, 2012, who “was incapable of consenting to the sexual act due to impairment by an intoxicant,” according to a Navy charging document.
In the wake of high-ranking military commanders’ stern words about sexual assaults in the military, defense attorneys have seized on those statements to claim unlawful command influence.
More than 60 Marine Corps defendants used the defense after Gen. James Amos, the commandant, made a comment in 2012 that he was “very, very disappointed” when court-martial boards don’t expel those found guilty of sexual assault. And Obama’s
May 7 utterance now has been cited in more than a dozen cases, according to news reports.
In the Johnson case, Fulton found that a member of the public “would not hear the president’s statement to be a simple admonition to hold members accountable.”
The public “would draw the connection between the ‘dishonorable discharge’ required by the president” and a punitive discharge approved by a military court.
“The strain on the system created by asking a convening authority to disregard this statement in this environment would be too much to sustain public confidence,” Fulton said.
Johnson’s counsel sought to show influence by other senior military leaders’ comments about sexual assault, but Fulton ruled those out.
Unlawful command influence, or improper interference with the court-martial process, is forbidden under Article 37 of the Uniform Code of Military Justice. Fulton added that appellate courts have called it “the mortal enemy of military justice.”
Fulton admitted it is not entirely clear that Article 37 applies to the president as the commander in chief.
The prosecution, in seeking to reverse Fulton’s ruling, said Obama is “not subject to” the military justice code, but also noted that the issue is “decidedly not settled.”
Lawyers for Johnson have requested oral arguments before the Navy-Marine Corps Court of Criminal Appeals at the Washington Navy Yard in Washington D.C.
The government prosecution, wanting to return the case back to the trial court as soon as possible, wants a decision without oral arguments.
Eugene Fidell, who teaches military justice at Yale Law School, said it may take a while for the issue to percolate up to the highest court of the military, the U.S. Court of Appeals for the Armed Forces.
“I really would be very surprised if the Court of Appeals for the Armed Forces were to give the president a free pass — because careless comments by the president can have a serious adverse effect on public confidence in the administration of justice under the UCMJ,” Fidell said.
Fidell said he wonders what legal advice, if any, Obama, a former law professor, was given about unlawful command influence.
“I think he’s learned a valuable and painful lesson,” Fidell said.
