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McKinney v. Caldera

March 28, 2001


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 2



In May 1997, the United States Government charged Sergeant Major of the Army ("SMA") Gene C. McKinney, the highest ranking enlisted man in the army, with sexually harassing and assaulting six female military personnel. In 1998, after a five-week trial by court martial, SMA McKinney was convicted of one count of obstruction of justice and acquitted of eighteen sexual misconduct-related counts. Thereafter, SMA McKinney filed various petitions within the military justice system alleging that serious acts of prosecutorial misconduct--including subornation of perjury--had tainted his trial. These petitions were all denied.

Plaintiff McKinney now comes before this court charging that the Judge Advocate General of the Army ("TJAG") *fn1 violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 et seq., by not adequately justifying its rejection of McKinney's request for post-trial review. The defendants in this action are the Honorable Louis Caldera, Secretary of the Army, and Major General W.B. Huffman, the Judge Advocate General, named in their official capacity. They argue that because the APA explicitly precludes judicial review of courts martial, the court must dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted. For the reasons stated herein, the court will grant the defendant's motion to dismiss.


On July 1, 1995, Gene C. McKinney became the first African-American to hold the rank of Sergeant Major of the Army, the highest enlisted rank in the United States Army. Less than two years after SMA McKinney achieved this distinction, one of his former aides came forward with allegations that he had sexually harassed and assaulted her. A criminal investigation ensued, during which the Army identified five additional complaining witnesses, all female military personnel. On May 7, 1997, the government preferred charges against SMA McKinney, including maltreatment, assault, communication of a threat, adultery, indecent language, and obstruction of justice.

Pursuant to Article 32 of the Uniform Code of Military Justice ("UCMJ"), the Special Court-Martial Convening Authority ("SPCMCA") appointed an officer to investigate the charges against SMA McKinney. See 10 U.S.C. § 832. *fn3 The SPCMCA also ordered an Article 32 pretrial hearing, which itself became the subject of litigation when SMA McKinney and various media organizations sought to have the hearing opened to the public. *fn4 See id. On October 8, 1997, upon the close of the SPCMCA investigation, the Commander of the Military District of Washington ("MDW") referred the charges to trial by general court-martial. *fn5 October 8, 1997 also marked the end of Gene McKinney's tenure as Sergeant Major of the Army. On that day, the Army administratively removed SMA McKinney from his distinguished rank.

A jury trial on the merits began on February 6, 1998. After more than five weeks of testimony and argument, the jury panel--composed of at least one-third enlisted members--returned a mixed verdict. While acquitting SMA McKinney of all 18 charges related to sexual misconduct, the jury found him guilty of one count of obstruction of justice in violation of Article 134, UCMJ, 10 U.S.C. § 934. *fn6 SMA McKinney was sentenced to a reprimand and reduced in grade-level to Master Sergeant.

Following trial, McKinney moved for an Article 39(a) post-trial evidentiary hearing to inquire into allegations that prosecutors had failed to disclose evidence, destroyed evidence, and attempted to influence witnesses. See 10 U.S.C. § 839(b). The Military Judge who presided over SMA McKinney's trial denied the motion without a hearing or oral argument. On July 27, 1998, McKinney submitted more detailed allegations of prosecutorial misconduct in the form of a declaration of Staff Sergeant ("SSG") Christina Fetrow, a prosecution witness at McKinney's court martial. According to McKinney, "the information related by SSG Fetrow provided reasonable cause to believe that the command Staff Judge Advocate and prosecutors ... engaged in a series of conscious, knowing and intentional acts of criminal and unethical conduct, including inter alia, commission of perjury and suborning perjury in an effort to deny evidence to former Sergeant Major of the Army McKinney." Pl.'s Opp'n to Mot. to Dismiss ("Opp'n") at 4. Notwithstanding SSG Fetrow's declaration, McKinney's renewed request for a post-trial evidentiary hearing was again denied.

McKinney then filed a petition requesting that the United States Army Court of Criminal Appeals issue a mandamus ordering the MDW Commander to convene a post-trial hearing. The Army Court of Criminal Appeals denied McKinney's petition on the merits without full briefing, and without holding a hearing or oral argument. Thereafter, on October 19, 1998, McKinney filed a Writ Appeal Petition to the United States Court of Appeals for the Armed Forces, seeking a post-trial evidentiary hearing in accordance with Rule for Court-Martial ("R.C.M.") 1102. The Court of Appeals denied the Writ Appeal Petition in a summary disposition. See McKinney v. United States, 51 M.J. 270 (C.A.A.F. 1998).

At length, the MDW Commander affirmed the findings and sentence imposed on McKinney, and forwarded the record of the trial to the Army Judge Advocate General (TJAG) for review. See 10 U.S.C. § 869. Under Article 69 of the UCMJ, a soldier who is convicted during a general court martial but is sentenced to less than one year of confinement receives an automatic review of the record of the trial by the Army Judge Advocate General, unless the soldier affirmatively waives review. *fn7 See id. "If any part of the findings or sentence is found to be unsupported in law or if reassessment of the sentence is appropriate, the Judge Advocate General may modify or set aside the findings or sentence or both." 10 U.S.C. § 869(a).

As part of its review, TJAG ordered Lieutenant Colonel Charles Cosgrove, a TJAG officer, to investigate McKinney's claims of prosecutorial misconduct. Under a grant of testimonial immunity, SSG Christina Fetrow testified in an ex parte interview with Lieutenant Colonel Cosgrove, which McKinney was not permitted to attend. Lieutenant Colonel Cosgrove also interviewed SGT Christine Roy (another prosecution witness from McKinney's court martial). During the course of her interview, for which she had not received immunity, SGT Roy "claimed the Fifth" when asked if anyone had instructed her to lie during McKinney's trial.

On October 5, 1999, after reviewing the record of the trial and the allegations of prosecutorial misconduct, TJAG denied McKinney's request to set aside the court-martial findings. TJAG provided no reasoning or rationale for its decision. *fn8 Because TJAG did not refer the case to the Army Court of Criminal Appeals, its October 1999 ...

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