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Military justice on trial: More protections for accused than in civilian system
AP on North County Times ^
| 8/21/06
| David Wallace
Posted on 08/21/2006 4:31:16 PM PDT by NormsRevenge
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.
TOPICS: Crime/Corruption; Extended News; Foreign Affairs; Government; US: California; War on Terror
KEYWORDS: accused; civilian; courtmartial; haditha; hamdania; hamdaniya; militaryjustice; pendleton8; protections; system; trial; ucmj; usmilitary
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.
To: NormsRevenge
2
posted on
08/21/2006 4:32:53 PM PDT
by
NormsRevenge
(Semper Fi ......Help the "Pendleton 8' and families -- http://www.freerepublic.com/~normsrevenge/)
To: NormsRevenge
3
posted on
08/21/2006 4:37:43 PM PDT
by
sit-rep
(http://trulineint.com/latestposts.asp)
To: NormsRevenge
Oh, so this is why they put the Pendlton 8 in chains and solitary confinement without trial ..... and generals said they were guilty before trial .....
4
posted on
08/21/2006 5:03:52 PM PDT
by
SkyDancer
("The Americans on Flight 93 did more to counter terrorism than the Democrats have done in 4 years")
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