Military justice on trial: More protections for accused than in civilian system
By: DAVID WALLACE - Commentary: | ∞
The military justice system is largely unknown to the American public. Other than an occasional, and usually inaccurate, depiction of a court-martial or other military proceeding on a TV show or movie, most people do not have an understanding of or appreciation for the military justice system. This is not surprising, since relatively few Americans have contact with the military, let alone the military justice system.
By any measure, the military justice system compares very favorably to any civilian justice system. The cornerstone of the military justice system is the Uniform Code of Military Justice. Congressionally enacted after World War II, the code was designed to promote good order and discipline in the armed forces. It does so by ensuring that service members' fundamental rights are protected at each stage of the military justice process. In some important respects, service members are provided more protections than their civilian counterparts under the military justice system.
Below are examples that illustrate the differences between the military justice system and its civilian counterparts: Each corresponds respectively with a stage of a general court-martial: pretrial, trial and post-trial. By no means do these examples represent an exhaustive list of differences. Rather, they simply highlight some of the unique features in the military justice system.
For example, in the military justice system, an accused individual has the right to an Article 32 hearing. An Article 32 is the functional equivalent of a civilian grand jury. Generally speaking, grand juries determine whether there is sufficient evidence to proceed to trial. Grand juries review evidence presented by a prosecuting attorney in secret. If they find probable cause to believe that an accused committed a crime, they will issue an indictment. In most jurisdictions that use grand juries, the accused individual or his counsel generally have no right to be present, hear the evidence, cross-examine witnesses or present defense evidence. A commonly repeated cliche is that a grand jury can indict a ham sandwich. That may be a bit of an exaggeration but, in reality, a grand jury infrequently acts in a manner inconsistent with the wishes of the prosecuting attorney.
An Article 32 hearing, on the other hand, is a prerequisite before charges can be referred to a general court-martial. General courts-martial are reserved for adjudicating the most serious allegations like the "Pendleton 8" case. Although an Article 32 hearing has roughly the same scope and function of a grand jury, it provides broader procedural protections for an accused.
For example, an experienced officer will be appointed to conduct the investigation. The accused and counsel will have an opportunity to be present and hear the government' s case. Relevant evidence will be reviewed and witnesses subject to the scrutiny and the examination of the accused' s counsel. In addition to the government's evidence, the accused has the right to testify and present any relevant evidence he or she desires to the investigating officer.
After considering all of the evidence and arguments, the investigating officer issues a report to the convening authority, the general officer empowered to send the case to a court-martial, making recommendations about the case. My experience in the military justice system has been that investigating officers take that role very seriously and will make recommendations contrary to the government when they do not believe there is sufficient evidence or other flaws with the case. An Article 32 hearing benefits the accused in at least two material ways that are different from a grand jury. First, it lessens the number of surprises at the trial because the accused and counsel have the opportunity to see the government' s case against them. Second, the accused and counsel have the opportunity to challenge the government's case and present evidence of their own. If the case against them lacks merit, they have a chance to end it at the Article 32 stage of the proceedings. In any case, an Article 32 provides far more procedural protections for an accused individual than a typical grand jury.
At the trial stage, there are many differences as well. One example is that an accused individual has the right to choose whether to be tried by a military judge alone or a panel, which is the functional equivalent of a civilian jury. The accused are provided independent military counsel free of charge. Moreover, they have a right to obtain the service of a civilian counsel of their own choosing. A military judge will be a military lawyer with substantial experience in the military justice system. Likewise, they are independent of commanders and the judge advocates who try the cases.
Panel members are handpicked by the convening authority for court-martial duty based on their age, education, training, experience, length of service, and judicial temperament. In many cases, they are the senior commanders and noncommissioned officers on an installation. When an enlisted soldier is being tried, he or she may request that enlisted members also serve on the panel.
Panel members are not only highly educated and extremely well trained, but they also have years of experience in the military. Many of them have been in combat. They understand and appreciate the military culture, the pressures and strains of military life, and the chaos of combat. Being a panel member at a court-martial is a priority duty and only the finest and most experienced officers and enlisted soldiers perform that duty.
If an accused individual is found guilty, there will be an extensive sentencing phase of the trial. The defense has great latitude in presenting information on extenuation, mitigation, and rehabilitative potential. After a sentence has been reached, the military justice system has an extensive system of review and appeal. In the first instance, the convening authority has broad discretion in modifying the findings or sentence, but only in a manner that is beneficial to the accused. Such a review provides an early opportunity for clemency for the accused. If the accused's sentence includes confinement for more than one year or a punitive discharge (i.e., a dishonorable or bad conduct discharge) from the service, he is entitled to an automatic appellate review of his case on appeal. The military justice system has two levels of appellate courts. The U.S. Supreme Court has the final authority to review military cases. An accused will be represented by an experienced judge advocate in any appellate proceeding.
In sum, the military justice system compares very favorably to civilian systems. Soldiers, sailors, airmen and Marines defend our freedoms around the world every day and they should expect and receive nothing less in their judicial system.
-- David Wallace teaches constitutional and military law at the U.S. Military Academy at West Point, N.Y. His views are personal and do not reflect the views or policies of the U.S. Army or West Point.
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to david wrote on Aug 20, 2006 3:51 AM:Sounds good on paper but you have missed the most important part. In the military you are guilty until proven innocent. The very moment that charges are filed you are treated as an outcast, demeaned and looked down upon. You may even be jailed for no real reason other than the command wants to teach you a lesson. The court martial panels are all made up from members of the unit you are in. So they already know what outcome the Commanding oficer wants and that is what they ensure happens. I will say this this was a very nice propaganda piece.
Not so sure: wrote on Aug 20, 2006 6:52 PM:From what we have seen so far in cases of military courts, they have been lenient in the extreme to the accused. People have been stuffed into sleeping bags and their chests compressed until they died and the charges and findings were equivelent to misdameanors. It seems you can commit murder and suffer no more than a loss in pay!
Bill wrote on Aug 21, 2006 1:02 PM:A very informative and accurate article on procedural matters, rules and regulations relating to the military justice system. There is an important distinction not mentioned that distinguishes the military justice system from civil systems of justice. Unlike civilian law and judicial systems, a person in the military can be criminally charged, court-martialed, convicted and sentenced for not only something he or she did in violation of military laws, rules and regulations, but for something that he or she did not do or failed to do. For example, it is required that every superior stop attempt to stop a violent act even if it potentially could result in the injury or death of the superior. Failure to take such action on the part of a superior officer or noncommissioned officer is a prosecutable and criminal offense. Moreover, the Uniform Code of Military Justice has a provision called a general article, Article 134. There is nothing in civilian jurisprudence that even approximates this article under which military members can be charged and prosecuted for various offenses, both those that are committed or those actions that should have been taken, but were not. Civil legal systems and civilian societies do not carry provisions for the criminal charging and prosecution of citizens who do not act or do nothing, only those who do something. Finally, the Uniform Code of Military Justice covers a military person every minute of every day, in everything that they do or don't do, regardless of the situation or environment in which they find themselves.
Jay wrote on Aug 21, 2006 3:59 PM:Actually that is not exactly correct and laws are changing. Many states have passed and enforced "Good Samaritan" type laws on citizens who fail to report crimes that they witness and certainly in civil court people (such as employers) are held liable for not taking action to prevent crimes. I understand that some states "require" a citizen to assist a police officer if he orders it. Many of the larger cities have ordinances compelling taxi-cab drivers to provide, free of charge (and under dangerous conditions), transport to police and other emergency agencies when ordered to do so. These could be an immediate situation such as a cop flagging them down and ordering them to "follow that car!" or being impressed for an indeterminate period of non-paid service during a disaster.
legally speaking wrote on Aug 22, 2006 10:03 AM:Here is an example of how civilian and military justice can differ: In the military you can kill, receive a medal and write a book In the civilian world you can kill and receive 20-to-life In the military you can drink and be a felon (see below example) In the civilian you can drink and be a hero (see "beerfest" "Old School" examples) ... from a March 21, 2006 online blog entry: "What NOT to send to your Marine LtCol Dave Furness sent this cautionary note to friends and family of his 1/1 Marines: I wanted to take the time today to sit down and ask for your assistance on an issue that I am very concerned about, alcohol and other off limits items being sent in the mail to your Marines and sailors. Today I had the unpleasant duty to forward a member of 1/1 to a General Officers level Non-Judicial Punishment. I took no joy in doing this, but the man was found with alcohol, alcohol that he had received from a family member. I am sure the family member believed they were doing him a favor. To reiterate, it is illegal for any Marine/Sailor/Civilian serving in Iraq to have alcohol. This one incident may very well have ruined his career. I once again ask you to please not mail any items which, in the possession of your loved one in Iraq, are considered illegal and could get them into serious trouble. Specifically, do not mail alcohol, pornography, firearms, or ammunition." Shame on anyone who touts the military justice system as a system of "justice." It is not. I won't take up your time listing the examples, but if you care to know more about this topic, you seriously should take the time to attend any courts-martial at a military post near you. They are open to the public in most cases. Or spend a few minutes on the National Institute of Military Justice's website ... www.nimj.org Or spend a few minutes on the Citizens Against Military Injustice website ... www.militaryinjustice.org Both are very eye-opening and educational resources for those interested in the topic of military justice. The military justice system is only as good as the integrity and honor of those who are charged with dispatching it. Have a nice day. :)
Conner wrote on Aug 23, 2006 5:38 AM:not accurate -- if the prosecution decides that evidence, like witnesses or access to the body or ROE, is "not relevant" to the Article32, the defense is stuck. So though the article32 investigation is supposed to be objective and the purpose is to get to the truth of the matter, the prosecution holds all the cards -- if it doesn't want to hand over evidence, it doesn't have to. Not exactly the justice system we should be exporting, and obviously for all those serving, another way to undermine their efforts is to make them more suspicious of their own military than the insurgents they are focusing on. The military justice process is designed for the prosecution and defense counsel, not for the good of the military personnel or justice in general
Redeemed wrote on Sep 3, 2007 7:17 PM:I have been a victim of this so-called great Military Justice system. Although there was a lack of evidence, I was convicted of a crime I DID NOT commit and was sentenced to over 30 years. After almost 6 years I was released, sentenced overturned and sent packing out of the military...I am still fighting to receive alot of things owed to me due to unlawful confinement among other things... THe UCMJ sucks, plain and simple.
Jorge wrote on Oct 29, 2008 7:04 PM:I too have been a victim of the Military Justice System. I served in the Army for more than 17 years. In 2004 I was deployed to Iraq, While conducting a raid on a High Value Target (HVT) I accidentally shot the HVT and I was charged and convicted of Pre-Meditated Murder, Cruelty and Maltreatment, and Obstructing Justice. These charges were without merit and I trusted in the military to clear up this misunderstanding. I have no idea how I was found guilty of anything, no evidence was presented by the Government to prove their case. On the contrary all of the evidenced proved that it was an accident, however neither one of my attorney did anything to defend me. Even though they said they would. While I was confined at the United States Disciplinary Barracks in Fort Leavenworth I met many more service members who has faced the same injustices that I faced. This Military Justice System is flawed and everybody that is part of the system know it, to include the Judges and Civilian Attorney's who charge their clients in excess of $10,000 to defend them knowing that the client will still be found guilty, but no one wants to do anything about it. One of the top Civilian Judges at the Court of Appeals for the Armed Forces (C.A.A.F) has even informed the Department of the Defense that the system is flawed, but he was told nothing is wrong. The Military convicts an average of 2,000 service members a year. Either the system is flawed or the military enlist a whole lot of criminals. I can honestly tell you the system is flawed.
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