Unlawful Command Influence (UCI)
Unlawful command influence (UCI) is one of the major reasons the Uniform Code of Military Justice was adopted after World War II. Unlawful command influence is prohibited under UCMJ Article 37(a).
UCI is considered a "mortal enemy of military justice." See United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). Thomas is the famous Third Armor cases. In the recent case of United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006), the court said,
This Court has repeatedly reaffirmed that the military judge is the "last sentinel" in the trial process to protect a court-martial from unlawful command influence. . . .
because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved in both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful.
One military judge colorfully described UCI as:
The mandate of United States [v.] Biagase, 50 M[.]J[.] 143 [C.A.A.F. 1999] could not be more clear. Undue and unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically eradicated. And this is going to be what we are about to see, the eradication of something that has shocked the conscience of this court.
See United States v. Gore, 60 M.J. 178, 184 (C.A.A.F. 2004).
In United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999) the Court held:
Once the issue of unlawful command influence is raised, the Government must prove beyond a reasonable doubt: (1) that the predicate facts do not exist; or (2) that the facts do not constitute unlawful command influence; or (3) that the unlawful command influence will not prejudice the proceedings or did not affect the findings and sentence.
If you suspect your case is being influenced wrongfully this is a matter you should raise with your military lawyer during trial preparations. This is an issue that must be addressed quickly and effectively if you are to have a fair trial. Biagese also set out what the accused and the military lawyer must do to put the UCI issue on the record.
In United States v. Stombaugh, 40 M.J. 208, 213 (CMA 1994), this Court held that the defense has the initial burden of raising the issue of unlawful command influence. Accord United States v. Ayala, 43 M.J. 296, 299 (1995). To raise the issue, the defense must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness. Stombaugh, 40 M.J. at 213, citing United States v. Levite, 25 M.J. 334, 341 (CMA 1987) (Cox, J., concurring). In United States v. Reynolds, 40 M.J. 198, 202 (CMA 1994), this Court defined what it means, in an appellate context, to "show" that the proceedings were unfair because of unlawful command influence. This Court held that prejudice is not presumed until the defense produces evidence of proximate causation between the acts constituting unlawful command influence and the outcome of the court-martial.
As you can see, you need the assistance of a military lawyer defense counsel who is willing to go up against authority, to professionally challenge authority, and to professionally put them on the spot to justify their actions. It's not enough to say my trial is unfair, you and your military lawyer need to establish some initial facts. Here is a link to an Army Judge Advocate General School study guide used to teach new Army lawyers. Here's a link to an article in the Army Lawyer, it's from 2001 so a little old, but it gives a flavor of the issues; and here's another one from 2004.