On Monday, May 22, 2017, a divided court finally came to the conclusion that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in the case of United States v. Boyd. The court also did not find prejudice to Boyce, concluding that any disinterested observer would doubt the fairness of the court-martial proceedings against Airman Rodney B. Boyce.

In response, the United States Court of Appeals for the Armed Forces (CAAF) set aside Boyce’s convictions of the rape and battery of his wife and authorized a rehearing, which means U.S. v. Boyce will be a brand new trial.

The authority at issue concerned Air Force Lieutenant General Craig Franklin. Franklin’s exercise of command discretion under Article 60(c) set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013. After his actions in Wilkerson’s case, and after he ordered the pretrial dismissal of charges in another sexual assault case, he referred Boyce’s case for trial by the general court martial, contrary to all his previous actions.

The briefs outlined why he may have done this; numerous subordinates recommended Franklin make the referral decision, including Boyce’s squadron commander, the staff judge advocate to the special court-martial convening authority, the special court-martial convening authority himself, and Franklin’s staff judge advocate. However, Boyce’s defense claimed at trial, on appeal at the Air Force CCA, and finally to CAAF that the decision was caused by unlawful influence. CAAF’s judges are unanimous in the rejection of this claim of actual influence; however, the majority of the court does regard the circumstances to be concerning.

Judge Ohlson led the majority of those finding the decision to be suspicious. He outlined a comprehensive review of CAAF’s UCI jurisprudence, differentiating between actual UCI and merely the appearance of it. According to Ohlson, the appearance of UCI doesn’t require a showing of prejudice. Rather, the appearance of UCI is damaging to the public perception of the fairness of the military justice system. Others disagreed with him, although they disapproved of the actions of the Air Force officials who brought the issue before the court.

Judge Ohlson and the majority concluded the public would question whether UCI was involved in the ultimate conviction of Boyd, and a genuinely independent and impartial court-martial would be required to ensure the integrity of military justice.

CAAF recently clarified for court-martial members that someone accused of a crime should be provided a fair panel and the appearance of a fair panel. There must be neither real influence nor the appearance of influence that can tarnish the public’s perception of the military justice system.

Judge Stucky and Judge Ryan both disagreed with majority reasoning. Stucky argued the fundamental principle of Ohlson’s assertion about the appearance of UCI makes little sense. If a fully informed observer was both objective and disinterested in the case but had full knowledge that there was no UCI involved, there would be no significant doubt about the fairness of such a court-martial. Judge Ryan agreed with Stucky on the point that if no actual UCI was involved, a fully informed observer would doubt a proceeding’s fairness.

Military court-martial defense attorney Joseph L. Jordan continuously follows the latest news in policy changes regarding trial by courts-martial and the military justice system. Any military service members who are accused of crimes and who must face a trial by court-martial can rely on Attorney Jordan for extensive experience and hard-hitting legal protection. Services members stationed abroad or at home can depend on him for the most complex defense cases. Attorney Jordan has represented military service members in multiple types of military criminal defense cases. Whether you are on active duty or are a retired military service member, you can rely on him to protect you, your rights, your reputation, and your rank. Contact his firm at (866) 361-4723 or fill out the online form for additional information.