Scholarship Saturday: Prosecutorial misconduct vs. unlawful command influence—plus another call from academia to strip commanders of prosecutorial discretion

By Isaac Kennen

Scholarship Editor
www.caaflog.org

A reader brought my attention to a recent article published in the Washington University Law Review.  In his article, Unraveling Unlawful Command Influence, 93 Wash. U. L. Rev. 1401 (2016), Professor Monu Bedi, of DePaul University College of Law, offers a comparative analysis of how the military and civilian jurisdictions handle allegations of prosecutorial misconduct and contrasts that with the approach that military courts take when a commander, as opposed to the prosecuting lawyer, is the person who has committed the misconduct.  In evaluating each of these scenarios, Professor Bedi plots them along a continuum that values “systemic integrity” on one end and “individual autonomy” on the other.

Professor Bedi explains that prosecutorial misconduct by lawyers in the military is handled under the same deferential standard that is applied to similar misconduct by civilian prosecutors. As example, the article points to:

[O]ne Air Force case, [United States v. Piolunek, 72 M.J. 830, 840-41 (A.F.C.C.A. 2013) (CAAFlog case page)] where the defendant was convicted of possession of child pornography, the prosecutor made improper and inflammatory remarks during closing argument: he called the defendant a ‘sex troll’ and a ‘perverted Peter Pan,’ and asked the jury to put themselves in the victim’s shoes, mischaracterizing the evidence against the defendant, among other things.  Because the defense attorney did not object at that time, the Air Force appellate court reviewed the misconduct for plain error.  It found that the defendant did not carry his burden of showing that the cumulative effect of the statements prejudiced the defendant against the overwhelming evidence of conviction.

Id. at 1435.

Such treatment, Professor Bedi argues, represents a preference for individual autonomy – not second-guessing the decision made by an accused at trial.  It is a rejection of paternalism.  The article posits that the result of that approach in the civilian system has been that prosecutor misconduct is now a “pernicious” problem which is “rampant in criminal trials[.]” 93 Wash. U. L. Rev. at 1436.  Accordingly, Professor Bedi is highly critical of the individual autonomy-promoting standard as it is applied to civilian prosecutorial misconduct.  One would think he would be similarly skeptical of such a deferential standard in the military.  However – despite his Piolunek example – Professor Bedi does not oppose applying that lenient standard to military prosecutors.  His rationale is, at least arguably, a little perfunctory:

While there do not appear to be any reports on the rate of misconduct by military prosecutors, the structure of the military justice system would suggest the occurrence is much lower than in the civilian system. . . . First, . . . military lawyers are probably not as heavily invested in the trial and thus less adamant on getting a conviction at all costs.  Second, the career path of a military lawyer involves numerous legal assignments, including prosecution, legal assistance, and operational law.  Because a lawyer may only serve as a prosecutor for a single tour at a time, she may not have the same steadfast commitment to the mission that would cause her to succumb to overreach.

Id. at 1440.

In contrast to the relatively deferential treatment of military and civilian criminal prosecutors, Professor Bedi finds that “the military system seems to more heavily scrutinize commander misconduct[.]”  Id. at 1440.  When it comes to “misconduct by commanders, . . . the military’s rules tend to implicitly underscore a value of systemic integrity more than individual autonomy[.]”  Id. at 1448.  To illustrate, Professor Bedi notes: “[a] defendant can make an allegation of unlawful command influence at any point during trial or on appellate review.”  Id. at 1423.  Further, rather than placing the burden on the accused to prove prejudice, as occurs in prosecutorial misconduct claims, “once the issue has been raised, the burden shifts to the government to prove beyond a reasonable doubt that either there was no unlawful command influence or that such influence did not prejudice the proceeding.”  Id.

In explaining why commander misconduct is subjected to a more stringent standard, the article first notes that commanders in the military justice system perform functions which would normally be executed by lawyers who are “bound by state [professional ethical] rules[.]”  Id. at 1441-1442.  Professor Bedi admits that ethical oversight has not effectively deterred unscrupulous lawyers, id. at 1442-1443, but the lack of similar licensing oversight for commanders is nonetheless his first explanation for why commanders receive less deference by military courts than prosecutors.

The second proposed reason that commanders get less deference is that they exercise broader authority than prosecutors:

Not only do commanders bring and dispose of charges, they also pick potential jurors and exercise post-trial clemency powers.  In this way, commanders serve quasi-judicial roles along with their prosecutorial functions.

Id. at 1443.

The last explanation Professor Bedi gives for why commanders receive less deference when they run astray is because that is precisely the effect Congress intended when it enacted Article 37:

The military system, at first, and unlike the civilian system, did not readily provide defendants with the same constitutional protections as their civilian counterparts.  Commanders also had wide discretion with little to no oversight.  Article 37 changed this state of affairs.  The point was to create a system that was fair to defendants without overreach by commanders.  This specific concern may explain why the unlawful command influence doctrine relied on systemic protections rather than the promotion of defendant choice and reliance on prudent command decisions.  The general negative public perception of the military criminal process during the promulgation of the unlawful command influence doctrine also helps explain why courts expanded the doctrine to include an appearance of impropriety test.  Courts wanted to make sure that the public viewed the system as fair and impartial.  The civilian system was not saddled with these same problems.

Id. at 1445-1446.

Having thus explained why he believes commander discretion should remain tightly curtailed, Professor Bedi then puts forth an argument that commander discretion—at least as regards to charging—ought to not merely be subjected to scrutiny, but should be abolished altogether.  He makes the argument by applying his individual autonomy vs. systemic integrity paradigm to the military justice system’s perennial bogeyman – sexual assault.   He posits: “commanders are free to bring whatever charges they deem appropriate, with little to no restrictions.”  Id.  “Thus, it would appear that the military adheres to a value of autonomy when it comes to this kind of discretion – quite different from the systemic integrity that underscores a commander’s conduct during the trial process.”  Id. at 1456-1457.  Then, the article asserts: “commanders have not effectively administered their charging discretionary authority” because “while sexual assault is rising in the military, commanders are not subsequently bringing more charges against defendants.”  Id. at 1456.

Those last assertions – that sexual assault is on the rise and commanders are not keeping up with their charging – seems to lack a factual basis.  See Appendix C to FY 2015 Annual Report on Sexual Assault in the Military, DoD Sexual Assault Prevention and Response Office (5 May 2016) (Read together, metrics 2 and 12, and non-metric 1a, seem to suggest that, overall, the rate of sexual assault has been decreasing while the rate of reporting and the rate of prosecution have, roughly, risen in parallel and have, of late, leveled-off).  Nonetheless, having narrated a problem, Professor Bedi offers his solution:

This value of autonomy—at least in the sexual assault charging context—has failed to produce just results and must be reevaluated.  The solution rests on inserting systemic integrity principles or structural restraints during the accusatory stage to ensure prosecution of sexual assault cases.  Probably the most straightforward and potentially most effective solution—as many scholars have argued—would be to completely remove discretion from commanders and, like the civilian model, place it in the hands of prosecutors.  This change would completely usurp a commander’s current level of autonomy, though in the process it may raise other issues regarding the nature of justice and discipline in the military system.

Id. at 1457.

- Originally published on February 11, 2017 on www.caaflog.com. Image available, without attribution, in the CAAFlog archive.