Military lawyers lose the 'good soldier' defense
By NANCY MONTGOMERY | STARS AND STRIPES Published: February 9, 2015
Can good soldiers do bad things?
It stands to reason that they can, just as good dentists, police officers, politicians, priests, astronauts and football players can.
But unlike their civilian counterparts, military criminal defendants had recourse to “the good soldier defense”: to try to persuade courts-martial judges and juries — through service records, ratings and testimony from colleagues and superiors — that they were too professional to have engaged in the criminal behavior of which they stood accused.
The 1998 court-martial of Sergeant Major of the Army Gene McKinney on charges of sexually harassing and assaulting six women, for example, featured 26 character witnesses, including a four-star general. They all testified to McKinney’s integrity, leadership and devotion to soldiers.
“In military law, character does count, and character alone may be enough to cause reasonable doubt,” McKinney’s defense lawyer, Charles Gittins, said in his closing argument to the jury. McKinney was acquitted of all but one charge — obstruction of justice — and reduced in rank to master sergeant.
Now that defense has gone the way of flogging as a tool in military justice. As part of reforms to address sexual assault that were included in this year’s National Defense Authorization Act, Congress restricted using military character evidence, bringing courts-martial more in line with civilian courts’ rules of evidence.
“When I was prosecuting sex crimes in Kansas City courtrooms, defendants couldn’t use their good work record as proof they hadn’t committed a rape,” said Sen. Claire McCaskill, one of the measure’s sponsors, in an email. “In the military, how good an airman, sailor, soldier or Marine you are has absolutely nothing to do with whether a rape has occurred.”
The change came with overwhelming bipartisan Congressional support and approval from legal scholars who said it was long overdue.
The defense was “the antithesis of criminal justice that prosecutes acts, not character,” said Elizabeth Hillman, a law professor at the University of California’s Hastings College of Law and a former Air Force officer. “Who did it benefit? People of high rank and long service,” she said. “It exacerbated the perception that (they) were immune from prosecution.”
The defense was pernicious in sexual assault cases, in which there is often little forensic evidence and fact-finders must weigh witness credibility especially carefully, experts said.
“It allowed people to put their thumb on the scale,” said Don Christensen, formerly the Air Force’s top prosecutor and now president of the victim-advocacy group Protect Our Defenders. That was particularly true when commanders or high-ranking officers vouched for a defendant’s character, Christensen said.
“It can have a potentially huge impact,” he said, “even though it’s factually meaningless. It’s like a priest accused of sexual misconduct, or a teacher. How many times have they been teacher of the year? People who commit sexual offenses are often model citizens.”
But members of a military jury are likely to give deference to the testimony or statement of a three-star general or a defendant’s commander, he said. “They’re going to assume that the three-star knows more about the case than they do. They think, ‘He’s looked at the evidence; he wouldn’t be saying that if the defendant were guilty.”’
A 2012 article in The Army Lawyer by Marine Maj. Walter Wilkie explaining how to best use the defense called it “a powerful tool” in all phases of a criminal defense — from before charges are filed to after a guilty verdict.
“(T)he defense can use it to influence the command in the accused’s favor before and after trial and to influence the factfinder in his favor during trial,” Wilkie wrote.
In the case of Aviano Air Base fighter pilot Lt. Col. James Wilkerson that same year, character evidence was unsuccessful at court-martial; a jury found him guilty of sexually assaulting a sleeping houseguest, dismissed him from the service and sentenced him to a year in jail.
But it worked eventually. After reviewing scores of letters vouching for Wilkerson’s sterling character in his 2013 review of the case, now retired Lt. Gen. Craig Franklin, then commander of 3rd Air Force and convening authority in the case, decided Wilkerson would not have committed the crime. Franklin, as military law then allowed, dismissed the verdict and reinstated Wilkerson into the Air Force. Congress responded by changing the law to strip commanders of the long-held, unfettered discretion to dismiss verdicts and reduce sentences — despite opposition from military leaders, commanders and the defense bar.
There was little opposition from military leaders to this year’s change. Even the reaction of military defense lawyers to the good soldier defense curtailment has been mostly muted.
“It is a step back for the defense. Any time you lose a potential defense it’s a loss by definition; it also strengthens the (prosecution),” said David Court, a Europe-based defense lawyer who retired last year. “Is it right? Is it fair? There you get into your own personal point of view,” he said.
“I can understand that in the civilian world being a good Xerox repairman would not be a good defense,” said Kyle Fischer, a former Army lawyer now in practice near Ft. Benning, GA. “I would never argue that this soldier is a good soldier so he wouldn’t commit rape.”
But putting on good soldier evidence, Fischer said, was beneficial in reminding jurors that a defendant was in fact a good soldier whose career and life were in their hands. “I think they’re more likely to give the defendant the benefit of the doubt for reasonable doubt,” he said.
Fischer said he expected more convictions as a result and lamented the recent changes to military law. “It seems at every step of the way they’re chipping away at every protection put in place to assure that the defendant can get a fair trial,” he said.
The new law specifically prohibits the good character defense for sexual offenses, larceny, robbery and arson, and generally whenever it’s not “relevant.”
Character evidence may still be introduced before sentencing at courts-martial, just as in the civilian system. And it is still allowed during the fact-finding portion of courts-martial for specifically military offenses such as desertion or disobeying orders.
That’s where its use began, Hillman said, before the military courts gained jurisdiction of non-military crimes such as rape and murder.