In our 2021--Year In Review in the CAAF Rules Guide, we (Fidell, Fulton, Sullivan, and myself) wrote:
"In Proctor an O-5 commander, knowing of a pending case of NCO misconduct, gave a speech urging subordinates not to 'enable' bad actors, and used as an example his past refusal to write a character letter for a subordinate facing an NJP.... CAAF agreed with the accused that there was 'some evidence' of UCI, but that the public perception of unfairness was not sufficiently egregious to warrant relief.... Proctor illustrates CAAF at its most disappointing: an institution set up primarily for the purpose of reducing command influence has created a byzantine, multi-step test for these claims (each step another opportunity to lose), but appears to lack the institutional will to apply it."
Proctor followed the Bergdahl decision of the prior year, about which I wrote: "CAAF descended into a burden-shifting maze, cloaking a judgment-call in technocratic language. And even when one descends into the maze with the court, one must conclude that it took wrong turns."
This year, it appears likely that CAAF will be able to review the UCI claim in Gilmet, where a senior Marine JAG leader strongly implied to a group of defense counsel that zealous advocacy will harm their career prospects. A friend writes, "Can any Marine or Marine's mother expect a fair trial on publicly available facts?"
Gilmet is CAAF's moment of truth. If it continues to react as an ostrich to blatant unlawful command influence, it will be consigning itself to irrelevance and betraying the purposes of of its founders--purposes which are as important today as they were when the court was created.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook