Military clarifies justice standard

A Navy judge at Pearl Harbor who found that a comment by President Barack Obama about sexual assaults in the military could illegally influence two trials is being given the chance to reconsider his decision after the secretary of defense issued a memorandum on the matter.

The trial issues — related to a statement by Obama, the commander in chief, that sexual assault perpetrators should be "dishonorably discharged, period" — pertain to a defense raised in the Hawaii cases that Obama’s statement potentially amounts to "unlawful command influence."

The defense has been used in a spate of military cases nationwide involving the comment by Obama and similar ones by other senior military leaders.

The worry is that court-martial boards, aware of such statements from superiors, would be swayed to give defendants less than a fair trial and that the public would view any convictions and discharges as the boards merely following orders.

But in an Aug. 6 memo, Defense Secretary Chuck Hagel said that each military justice case "must be resolved on its own facts."

Senior military and civilian leaders in the Defense Department have an obligation to establish the standards of conduct expected of all military personnel, Hagel said.

"But those comments are not made with the intent to indicate in any way what should or should not occur in any case," Hagel said.

Hagel added, "There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than what result from the individual facts and merits of a case."

The defense secretary ordered that all service members be made aware of the memo’s contents.

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 — resulting in 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 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 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 in court papers.

In a ruling Wednesday, the Navy-Marine Corps Court of Criminal Appeals said the government prosecution can ask Fulton to reconsider his prior decision about unlawful command influence in the Johnson case, in light of the defense secretary’s memo.

The appeals court also lifted the stay on proceedings in the trial.