Tangotiger Blog

Yeah - I caught a radio piece about the case a few days ago. It sounds like a sufficiently high officer can effectively set aside a court-martial conviction, and that even the secretary of defense can’t reinstate it.

This may have been the story I heard:
http://www.npr.org/2013/03/08/173843052/dismissal-of-air-force-officers-sexual-assault-conviction-raises-questions

As the story is presented, it certainly seems like a miscarriage of justice…

This is not like a pardon, really. And it is not at all unusual (the power at least). Any judge can set aside any guilty verdict. This sounds to me like the same thing. In fact, more judges should probably do this, IMO. (I am not commenting on the appropriateness of this particular one.)

I say this does not seem like a pardon because pardon’s are usually not in effect saying, “I don’t think this person was guilty.” Judgments N.O.V. (when a judge sets aside a jury verdict of guilty) are when a judge thinks that the facts of the case, as presented by both sides, clearly do not support a verdict of guilty. It is basically one of the many checks and balances in our justice system. Some people do not like it, but it rarely comes up (more so in civil trials) such that it is not really that controversial. Judges are loathe to exercise it other than in really, really, exceptional and obvious miscarriages of justice (in their opinion of course), and even then…

The judge at least is the presiding judge, actually in attendance.

And wouldn’t there also be an appeal process?

This may be what Tango is asking in #4, but I wonder if a “set aside” verdict can be appealed.  Can a defendant be tried again if they were found guilty once but the verdict was “set aside”?  I smell a sequel to the Ashley Judd movie…

Also, to me this seems to counteract the notion of checks-and-balances.  Sort of like the whole electoral college system, where everyone votes and then the representative can just vote for whoever he wants.  I realize no one does this, but the very existence of the possibility seems to lend itself to more negative possibilities tan positive ones.

“And wouldn’t there also be an appeal process?”

“This may be what Tango is asking in #4, but I wonder if a “set aside” verdict can be appealed.  Can a defendant be tried again if they were found guilty once but the verdict was “set aside”?”

In a non-military criminal case, if the presiding judge orders a directed judgment or JNOV, the prosecution may not appeal.

Note that this is different than if the victim had brought a civil suit and the court had entered judgment in favor of the purported offender.  In that case, there would be appellate rights for the victim.  But as a society, we have decided that the government only gets one shot at a criminal defendant.

JNOV’s can be appealed in civil cases. In criminal case I am not sure. I think they can. I don’t think it is considered double jeopardy but I am not sure.

It is basically a mini-appeal of a verdict. A party has to move for a JNOV. A judge cannot just issue one on his own. And there are various other rules for when and how the motion can be made (each state has its own rules and procedures and in ferderal court the FRP apply).

It is rare and it is difficult for a judge to abuse this. He is required to review the motion in a light most favorable to the non moving party. It is a check and balance against a stupid verdict or one where the jury does not understand something.

In a criminal trial it is important in our justice system that we don’t send someone to jail unless the state proves its case beyond a reasonable doubt. And in a civil trial a party can appeal a JNOV. So again, it is an important option and it is difficult to abuse.

I don’t think that what MGL suggests is what happens very often.  Ordinarily, if the trial judge believes that the evidence is insufficient to support a verdict, the judge will direct a verdict for the defense before letting the jury decide the case.  After the case, ordinarily what you’ll see is not a directed verdict, but a grant of a motion for a new trial.  I don’t know if they don’t actually have the power after a verdict, but I think it’s very rare that they will change the verdict in the defense’s favor after the verdict.

But what I understand is going on here is different.  The officer has to confirm a verdict and if he doesn’t, then the defendant goes off scot-free.  And his discretion in such a case is plenary; i.e., no appeal.  Ordinarily, you’d think of this as a means of ensuring justice, because ordinarily you would think commanding officers don’t want soldiers guilty of crimes against the UCMJ in their unit or indeed their service. 

The problem here is that there is a class of offenses—sex offenses against women—where there is a strong possibility that there are officers in the military who think should never be prosecuted.  I think such officers are the ones who should be drummed out of the service, but obviously your mileage may vary.

I don’t think that what MGL suggests is what happens very often.

I am not “suggesting” anything. I am regurgitating what I learned in law school (and refreshing my memory via Google), which I have to assume is accurate. What did you learn in law school?

But, thanks for clearing that up. Wait…

MGL said this:

“Some people do not like it, but it rarely comes up...”

A directed verdict, where the judge declares a verdict before the case goes to jury (actually the judge “directs” the jury to return a certain verdict), upon motion by the defense (the state in a criminal trial cannot get a directed verdict) in a criminal trial or either side in a civil matter, is a completely separate but related procedure (in some states, you have to have moved for a directed verdict or “judgment as a matter of law,” which it is more commonly called, before you can move for a JNOV).

Both of these are rare, although much more common in a civil matter. And the directed verdict is many times more common than the JNOV, which you hardly ever see.

After the case, ordinarily what you’ll see is not a directed verdict, but a grant of a motion for a new trial.

This is more common, and one of several options, but I don’t know what you mean by “ordinarily.”

I don’t know if they don’t actually have the power after a verdict, but I think it’s very rare that they will change the verdict in the defense’s favor after the verdict.

Yes, they have the “power” (I assume that you meant “do” rather than “don’t”). Do you think that I was making the whole thing up, including the term JNOV? That would be really weird.

But what I understand is going on here is different. The officer has to confirm a verdict and if he doesn’t, then the defendant goes off scot-free.  And his discretion in such a case is plenary; i.e., no appeal.

That sounds to me like exactly the same thing. Exactly. Perhaps it is used more often in the military, but in civilian court, we can say the same thing as you just said. If the judge does not offer a JNOV or directed verdict (although it usually requires a motion), then he is in essence confirming the verdict, exactly like the presiding officer in the military trial. If the judge does declare a JNOV or DV, then the defendant goes off scott free. So where is the difference, other than perhaps the frequency of occurrence and the fact that the military officer apparently has to actually affirm the guilty verdict whereas the civilian judge just says, “Thank you very much,” and walks out of the courtroom?

i.e., no appeal.

A directed verdict is non-appealable too - double jeopardy applies. I said that I thought that the state could appeal a JNOV, but upon further reflection, I don’t think they can. So in this respect, again, the military presiding officer and the civilian judge have exactly the same “plenary” power. (In a civil trial a directed verdict or JNOV can be appealed).

Ordinarily, you’d think of this as a means of ensuring justice, because ordinarily you would think commanding officers don’t want soldiers guilty of crimes against the UCMJ in their unit or indeed their service.

I don’t understand that statement at all. It is justice to let a guilty person go free? I don’t know what you mean in the second clause of that sentence.

The problem here is that there is a class of offenses—sex offenses against women—where there is a strong possibility that there are officers in the military who think should never be prosecuted.

While I don’t doubt that there are corrupt people in every institution, I think that in this day and age, that is a strong accusation for you to make without presenting any evidence. Why would officers not want to prosecute clear cases of rape and sexual abuse? I would assume that a large majority of military officers are decent, moral, law-abiding persons, who abhor sexual abuse as much as anyone. As well, contrary to what some feminists think, there are cases where the line between consensual sex and sex abuse, among adults, can be blurry. Perhaps those are some of the cases that these officers are somewhat hesitant to prosecute…

The discussion of JNOV is interesting, and I agree this seems similar to that - I basically said it sounded like the general effectively set aside a conviction.

But it’s not so clear to me that the general was, or needed to be, present for the trial in order to effectively set aside the verdict. If so, that’s a marked difference between the two situations, and it would seem to be quite relevant to the discussion.

Here’s a link to the UCMJ code. The relevant section is 860.60.

This implies that the officer (the “convening authority”) need not be present: “... the findings and sentence of a court-martial shall be reported promptly to the convening authority…”

It also seems that while the officer has “sole discretion”, if he does set aside a conviction, he must obtain a written recommendation from his legal officer: “Before acting under this section ... the convening authority ... shall obtain and consider the written recommendation of his staff judge advocate or legal officer.”

Note this does not mean that he must follow that recommendation, merely that it must be made.

I would note that no matter what some military officers, or civilians, may think is proper for sexual assault allegations, this case was indeed prosecuted, and the accused was originally convicted. So rather than speculating about whether the pardoning officer might simply generally be opposed to such prosecutions, it seems more appropriate to speculate about reasons particular to this case why he might not want this conviction to stand. That the accused was so high in rank himself makes me suspect that the general personally knew him, at least casually, and if so, it’s plausible that a personal relationship might impact his decision.

I obviously have no evidence to support such speculation; it’s also possible there were irregularities in the trial itself, or maybe there’s some other reason for setting aside the conviction. Given that the general has “sole discretion”, it doesn’t sound like he needs to present any reason at all.

And while this particular case may be an abuse of such power, it may instead be a reasonable and proper use of it. Without more detailed knowledge of the case it’s impossible to render a fair judgment on that.

“Why would officers not want to prosecute clear cases of rape and sexual abuse?”

Because it would bring an institution they value into disrepute.  I seriously doubt everybody at Penn St wanted Sandusky to bone more kids or that a huge portion of the catholic clergy is rabidly pro-molestation, but those things are/were regularly, systematically covered up all the time. 

A directed verdict (or whatever variant) in a civilian matter is done by a judge who shouldn’t and usually doesn’t give a crap (beyond a sense of justice) about the result.  Letting a commanding officer do it for underlings is the exact situation you have with Penn St/Sandusky, bishops/molesting priests, administrators/star athletes, captains/dirty cops, etc, where abuses are covered up almost as a matter of course to protect the institution.  That’s the difference here.

I agree that there are situations where the “presiding authority” can and likely does abuse his authority. I agree that there likely have been and will be cover-ups in the military, as there is in almost any institution where adversaries personally know one another and people in positions of authority have a vested interest in the reputation of the institution. Whether that occurred in this case, or whether this sort of power in the military justice system is a good thing or not, I have no idea.

I also agree that while the JNOV and DV in the civilian justice system are similar to this military procedure, there are, at the same time, significant differences. A judge (in a civilan trial) being there every day is a significant difference, although a party who is not there can certainly scrutinize the record and do the same thing. That is what appeals courts do every day.