CAAF has decided the Gilmet case. In a unanimous opinion, the Court held that actual unlawful command influence occurred, and that the curative measures were insufficient. Crucial to the outcome, it seems, was that this was influence directed against defense counsel. Defense counsel are not fungible. Given this, unlawful influence directed at defense counsel becomes somewhat akin to structural error.
Gilmet is significant more so in the disposition of CAAF that it represents: CAAF, resurgent. Guarding against UCI is at the core of CAAF's reason for existence. CAAF is often spoken of as a "bulwark" against UCI. “[A] prime motivation for establishing a civilian Court of Military Appeals was to erect a further bulwark against impermissible command influence.” Thomas, 22 M.J. at 393 (citing Hearings on H.R. 2498 Before a Subcomm. of the House Committee on the Armed Services, 81st Cong., 1st Sess. 608 (1949). But the Court, on its own volition, created a complicated multi-step burden shifting analysis to vindicate this right against UCI. It used the eddies created by this doctrinal maze to deny relief in the high-profile case of Bowe Bergdahl, rather than frankly addressing the reality of what had taken place. Gilmet shows, one hopes, that CAAF is reasserting itself as the bulwark it was meant to be. The Shaw comments in Gilmet demonstrate a serious problem in the culture of military justice--at least in the Marine Corps, which is far too small to be able to set up a system of its own that is not tainted by personal and professional allegiances (or vendettas). Today's decision represents an important message, sent by a civilian court, that the military must conform its system to norms of due process and independence.
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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Joint R. App. Pro.
Army Crim. L. Deskbook