at Yale Law School. "There's no way to put an end-date on it, other, perhaps,
than the stroke of noon on Jan. 20, 2017."
On Monday, the Navy-Marine Corps Court of Appeals could order oral arguments from each side regarding Fulton's ruling. The appeals court has postponed Johnson's trial until the issue of unlawful command influence is resolved.
Prosecutors argue that comments by Obama and other senior leaders have little impact at lower levels of the military, and that it remains unclear whether civilians are capable of unlawful command influence.
If Fulton's ruling is allowed to stand, "it may be the final straw that undermines the public's faith in the fairness of the military justice system," Marine Corps Maj. Paul Ervasti wrote in the government's petition to the appeals court.
Defense attorneys -- and in this case, Fulton -- agree that public faith in the military justice system is at stake. They state that the generals and admirals who convene courts-martial could feel pressured to approve specific sentences, and pressure will flow downward toward judges and juries.
"A member of the public who is aware of all the facts and circumstances in this case would have doubts whether the accused would receive a post-trial review ... untainted by improper external influences," Fulton wrote in the June ruling.
If the service appeals court validates Fulton's ruling, it's difficult to know whether it would be appealed.
Like many higher appeals courts, CAAF accepts only a fraction of the appeals it receives. However, there are signs that the court is interested in the larger issue.
On June 27, CAAF set aside the unpremeditated murder conviction of Marine Sgt. Paul Hutchins III on the grounds that investigators acted improperly.
That conclusion mooted a second question -- whether Secretary of the Navy Ray Mabus' comments that Hutchins' act was "so completely premeditated," and that Hutchins had been granted "substantial clemency already," constituted unlawful command influence.
Chief Judge James E. Baker wrote that "by failing to address the allegations of unlawful command influence, the majority avoids a systemically important question and central aspect of the case, which warrants inquiry and consideration by this Court."
Judge Margaret Ryan called Mabus' comments "disturbing and inappropriate."
Even if CAAF sets a clear precedent, it would only settle courtroom matters.
Clemency and parole boards, as well as servicemember discharge boards, are also composed of military personnel.
Servicemembers facing extended jail time or undesirable discharges could argue that the boards have been influenced by senior leader comments. However, even the military's highest appeals court has no jurisdiction over such boards.
"This means the president's comments could eventually come under scrutiny in the federal courts," Fidell said.
(c)2013 the Stars and Stripes
Visit the Stars and Stripes at www.stripes.com
Distributed by MCT Information Services
Most Popular Stories
- AIG to Create 230 Jobs in Charlotte
- 15 Myths That Could Ruin Your Hispanic Ad Campaign
- Russia Says Nyet to Canada North Pole Claim
- Bipartisan Negotiators Reach Modest Budget Agreement
- Justin Bieber Visits Typhoon Victims, Plays Concert
- Senate Dems Move Forward With Obama Nominees
- Obama Nominee Confirmed for D.C. Appeals Court
- New Obama Aide to Focus on Climate Change
- MasterCard to Split Shares, Raise Dividend
- GOP, Dems Strain to Unearth a Modest Budget Pact