Article 37 of the Uniform Code of Military Justice (UCMJ) prohibits unlawful command influence (UCI) in military prosecutions. The prohibition of UCI, Vincent A. Marrazzo argues, is a critical component of the military justice system, ensuring both fairness and public confidence in the military prosecution process.
Marrazzo contends, however, that the Court of Appeals for the Armed Forces (CAAF) has expanded UCI doctrine far beyond the textual confines of Article 37. In particular, the development of “apparent UCI”—which allows CAAF to set aside a finding or sentence for the mere appearance of UCI even if the apparent UCI did not materially prejudices the substantial rights of the accused—directly contravenes the Article 37’s requirement that such prejudice must exist in order to set aside a finding or sentence of a court-martial and also Article 37’s requirement that UCI must be intentional.
Although the doctrine of apparent UCI serves laudable goals, it is also in direct conflict with the text of the UCMJ. Ultimately, Marrazzo, concludes, a doctrine of apparent UCI may be desirable, but it is up to Congress, not the courts, to revise the UCMJ.
Hosted by National Institute of Military Justice (in honor of NIMJ’s 30th anniversary)
The following pieces are from the “30 Years of Military Justice” symposium held on Oct. 28, 2021, with keynote speaker Senator Kirsten Gillibrand (D-NY), and in partnership with Georgetown University Law Center’s Center on National Security and the Law, the Journal of National Security Law & Policy, and the Georgetown National Security Law and Military Law Societies.
In 2018, the Supreme Court held that it has appellate jurisdiction to review decisions of the Court of Appeals for the Armed Forces (CAAF) under 28 U.S.C. §1259. However, CAAF is the final court atop the “courts-martial system” and §1259 limits Supreme Court review of courts-martial cases to those where CAAF has already reviewed or granted some relief. In fiscal year 2020, CAAF granted review in just 10.9% of cases where it received a petition.
Kyle Yoerg argues that service members should have a right to appeal to the Supreme Court even if CAAF denies a petition for review. The following three reasons underlie his argument. First, service members currently have inferior access to the Supreme Court than do civilians in other jurisdictions in the United State. This includes defendants in state court and even suspected enemy combatants detained at Guantanamo. Second, CAAF traditionally reviews error correction cases where the Supreme Court is unlikely to grant certiorari. Finally, enhanced Supreme Court review will not adversely affect military readiness.
Yoerg ultimately concludes that the Equal Justice for Our Military Act, an amendment to 28 U.S.C. § 1259 originally proposed in 2009, is the appropriate vehicle to expand service member access.