Courts-martial begin today in APG scandal Defense expected to say top officials had improper influence


After months of debate touching on race, command and coercion at Aberdeen Proving Ground, court-martial proceedings open today with a key challenge to the Army's handling of the sexual misconduct investigation -- on the talk-show circuit and in the interrogation room.

Defense attorneys will charge that a zealous public campaign by Army Secretary Togo West and other top officials has improperly influenced the courts-martial -- a quirk of military justice known as "unlawful command influence." As a result, the attorneys say, jurors will have no choice but to convict the accused soldiers of sexual misconduct.

And though today's pre-trial hearing involves only Capt. Derrick Robertson, one of five Aberdeen soldiers facing trial on charges as serious as rape, a ruling on that issue could scuttle all of the Aberdeen cases.

"The military courts are death on unlawful command influence," said Susan G. Barnes, a Denver attorney and head of the Women Active in Our Nation's Defense, their Advocates and Supporters. "If they prove it, that could be the end of the prosecutions."

Unique to military justice, unlawful command influence has occurred most often in well-publicized cases. Defense attorneys will try to show that senior Army officials with the power to convene a court-martial influenced the judge, jurors or witnesses.

"Direct and indirect, real and perceived, [it] is one of the most persistent problems in military law," wrote Maj. Deana M.C. Willis in a 1992 edition of Army Lawyer.

Army defense lawyers have used the issue to reverse scores of convictions, mostly in drug cases. And the Aberdeen cases, which have drawn national media attention for months, are ripe for a challenge, Army lawyers say.

Since early November, when allegations of sexual misconduct at the Army training post shook the military, West and other Army leaders have waged a public relations crusade. Now, defense lawyers have turned to the public record for evidence, gleaning statements from transcripts of television news shows, National Public Radio and even the Pentagon's "Early Bird" newspaper summary.

Media statements

For example, Army Chief of Staff Dennis J. Reimer said at a Nov. 7 news conference: "I think there are some cases that probably [recruits] had been abused. And I think in those particular cases, we have to go after the person who abused it and take care of it. And that's what we're doing in this particular case."

Soon after, on CBS's "Face the Nation," West called the Aberdeen problem "the worst we've seen." And on NBC's "Today Show," Gen. Robert D. Shadley, commander of the Ordnance Center and School, called the charges "very strong" and said "there is no such thing, really, as consensual sex between a trainee and their supervisor."

The Aberdeen problems surfaced a year after a Defense Department survey found that 55 percent of Army women believed they were sexually harassed in the past 12 months, the highest rate of any armed-services branch.

As a result, Army leaders were quick to brand the allegations TC intolerable, despite warnings from a military judge in December against public statements.

"The fact that they've said anything at all gives the defense grounds to challenge it," Barnes said. "It's almost as if the Army is damned if they do, damned if they don't."

Privately, judge-advocate generals handling the Army's case say command influence could hamper prosecution.

In 1972, the commanding general of the Army's 82nd Airborne Division published a letter in a base newspaper saying he would not reverse drug convictions on appeal. An Army court later reinstated at least one enlisted man because of those comments.

In another case, a general described drug dealers as "a slime that lives among us a filth that is unspeakably sordid." The comments were determined to constitute unlawful command influence, and the case may hold value for Aberdeen defense lawyers.

'Not a lecher'

Shadley said Nov. 8 on "Face the Nation": "We need to ensure that the soldier standing in front of that formation is a true leader and not a lecher."

When Shadley made those comments, Robertson had been charged with raping, forcibly sodomizing, and assaulting a female private under his command. Only two other soldiers had been charged at the time.

Defense attorney Capt. Maria McAllister-Ashley will argue that West and the assistant Army Secretary have refused to meet with her as she prepared Robertson's case. She will ask Judge Ferdinand Clervi to order the Army leaders to sit for interviews.

McAllister-Ashley also will challenge the statement of Robertson's sole accuser -- an outgrowth of recent allegations by five female privates that Army investigators tried to force them to make false rape charges. Robertson has admitted having consensual sex with a private in his charge, but calls the allegations of rape and forcible sodomy "lies."

Other defense attorneys will be watching Robertson's case unfold in a cramped post courtroom -- with an eye to pressing the command influence issue themselves.

"It will be an issue we raise in court," said Capt. Edward W. Brady, the lawyer for Staff Sgt. Delmar Simpson.

Racial issues

Eight black men have been charged with crimes in the Aberdeen case. Of the 22 men suspended during the investigation, 14 have been black. Army officials say the numbers reflect the Ordnance Center and School's ethnic makeup; others have questioned whether it is racial bias.

Two sergeants have left the Army rather than face courts-martial. The cases against 10 other sergeants have been resolved administratively, including the dismissal of charges against two black soldiers.

Robertson, 31, was a "fast-burner," an officer on the move. The East Texas native enlisted in 1985 to expand career prospects that in his small town comprised work in tire, air conditioning or pipe factories.

Within five years, he had made the jump to officer, receiving plum postings in Germany. In 1995, he chose a fast-track posting as operations officer of the 61st Ordnance Brigade at Aberdeen.

A month later he took over as commander of Alpha Company, 143rd Ordnance Battalion, a post he held until he was charged by recruits who allegedly came to him to report sexual misconduct by superiors.

Acknowledging that he had consensual sex with a private, he said in an interview: "I engaged in an improper relationship forbidden by regulations with her and that was it. I was relieved of my command and rightfully so. I regret that I caused the negative attention to the United States Army."

Pub Date: 3/20/97

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