As readers of this blog know, Montgomery McCracken successfully represented Brigadier General Jeffrey Sinclair in his court-martial in March. General Sinclair was sentenced only to a reprimand and a $20,000 fine. Montgomery McCracken defense team’s strategy included challenging the government’s case on the basis of unlawful command influence and arguing that political considerations improperly influenced the case. Unlawful command influence has been identified as the “mortal enemy of military justice” because it “tends to deprive [s]ervice members of their constitutional rights.” United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). The defense filed multiple motions arguing that unlawful command influence deprived General Sinclair of his right to a fair trial. Ultimately, the defense demonstrated that the convening authority had been unlawfully influenced in rejecting a plea offer. Following the court’s granting of the defense’s motion, the court dismissed the panel and allowed the defense another opportunity to resolve the case.
One member of General Sinclair’s initial defense team, Major Elizabeth Murphy, recently published an article in the Military Law Review examining the current debate around whether commanders should have the authority to decide the path and ultimate fate of sexual assault cases in the military. Major Murphy argues, persuasively, that judge advocates – and not commanders – should have prosecutorial discretion for felony-level offenses under the UCMJ. While the debate continues on in Congress, Major Murphy provides scholarly support for removing the chain of command from criminal justice decisions.