Posted on 07/11/2006 6:20:55 PM PDT by xzins
Purpose of Article 32 Investigations
Procedures for Article 32 Investigations
Rights of the Accused
The Fifth Amendment constitutional right to grand jury indictment is expressly inapplicable to the Armed Forces. In its absence, Article 32 of the Uniform Code of Military Justice (Section 832 of Title 10, United States Code), requires a thorough and impartial investigation of charges and specifications before they may be referred to a general court-martial (the most serious level of courts-martial). However, the accused may waive the Article 32 investigation requirement. The purpose of this pretrial investigation is to inquire into the truth of the matter set forth in the charges, to consider the form of the charges, and to secure information to determine what disposition should be made of the case in the interest of justice and discipline. The investigation also serves as a means of pretrial discovery for the accused and defense counsel in that copies of the criminal investigation and witness statements are provided and witnesses who testify may be cross-examined.
An investigation is normally directed when it appears the charges are of such a serious nature that trial by general court-martial may be warranted. The commander directing an investigation under Article 32 details a commissioned officer as investigating officer, who will conduct the investigation and make a report of conclusions and recommendations. This officer is never the accuser. This officer may or may not have any legal training, although the use of military attorneys (judge advocates) is common within service practice. If the investigating officer is not a lawyer, he or she may seek legal advice from an impartial source, but may not obtain such advice from counsel for any party.
An investigative hearing is scheduled as soon as reasonably possible after the investigating officer’s appointment. The hearing is normally attended by the investigating officer, the accused and the defense counsel. The commander will ordinarily detail counsel to represent the United States, and in some cases a court reporter and an interpreter. Ordinarily, this investigative hearing is open to the public and the media.
The investigating officer will, generally, review all non-testimonial evidence and then proceed to examination of witnesses. Except for a limited set of rules on privileges, interrogation, and the rape-shield rule, the military rules of evidence (which are similar to the federal rules of evidence) do not apply at this investigative hearing. This does not mean, however, that the investigating officer ignores evidentiary issues. The investigating officer will comment on all evidentiary issues that are critical to a case’s disposition. All testimony is taken under oath or affirmation, except that an accused may make an unsworn statement.
The defense is given wide latitude in cross-examining witnesses. If the commander details an attorney to represent the United States, this government representative will normally conduct a direct examination of the government witnesses. This is followed by cross-examination by the defense and examination by the investigating officer upon completion of questioning by both counsel. Likewise, if a defense witness is called, the defense counsel will normally conduct a direct examination followed by a government cross-examination. After redirect examination by the defense counsel, or completion of questioning by both counsel, the investigating officer may conduct additional examination. The exact procedures to be followed in the hearing are not specified in either the Uniform Code of Military Justice or the Manual for Court-Martial.
The investigating officer, however, will generally:
-Announce the beginning of the investigation and its purpose
-Advise the accused of his or her right to counsel and ascertain whether the accused will be represented by counsel, and if so, by whom
-Formally read the charges preferred against the accused
-Advise the accused of his or her rights to make a statement or to remain silent
-Review the documentary or real evidence available against the accused
-Call any available adverse witnesses
-Review documentary or real evidence in favor of the accused
-Call any available favorable witnesses for the accused
-Hear any evidence presented by the accused
-Hear any statement the accused or defense counsel may make
-Entertain, if any, arguments by counsel
Upon completion of the hearing, the investigating officer submits a written report of the investigation to the commander who directed the investigation. The report must include:
-Names and organizations or addresses of defense counsel and whether they were present throughout the taking of evidence, or if not, why not
-The substance of any witness testimony taken
-Any other statements, documents, or matters considered by the investigating officer
-A statement of any reasonable grounds for belief that the accused was not mentally responsible for the offense, or was not competent to participate in the defense during the investigation, or there is a question of the accused’s competency to stand trial
-A statement whether the essential witnesses will be available at the time anticipated for trial or a statement why any essential witness may not then be available
-An explanation of any delays in the investigation
-The investigating officer’s conclusion whether the charges and specifications are in proper form
-The investigating officer’s conclusion whether reasonable grounds exist to believe that the accused committed the offenses alleged
-The recommendations of the investigating officer, including disposition of the charges
Upon completion, the report is forwarded to the commander who directed the investigation for a decision on disposition of the offenses.
The accused at an Article 32 investigation has several important rights.
The accused also has a right to waive an Article 32 investigation and such waiver may be made a condition of a plea bargain. If the investigation is not waived, the accused is entitled to be present throughout the investigative hearing (unlike a civilian grand jury proceeding). At the hearing, the accused has the right to be represented by an appointed military defense counsel or may request an individual military defense counsel by name and may hire a civilian attorney at his or her own expense. Again, unlike a civilian grand jury proceeding, the service member, through the member’s attorney, has the following rights: to call witnesses; to present evidence; to cross-examine witnesses called during the investigation; to compel the attendance of reasonably available military witnesses; to ask the investigating officer to invite relevant civilian witnesses to provide testimony during the investigation; and, to testify, although he or she cannot be compelled to do so.
The accused must be served with a copy of the investigative report and associated evidence. Within five days of receipt, the accused may submit objections or comments regarding the report to the commander who directed the investigation.
2Lt. Ilario Pantano's new book "Warlord" contains a riveting narrative of his own Article 32 hearing. KerBob sez "check it out."
I'm fairly certain the military will succeed in it.
They can use any number of justifications from length of service obligation to charges for crimes (allegedly) committed while in military.
Padre, you probably know this, but the military does have the authority to do that in cases like Green where there is a commuted IRR obligation, or in the case of retirees.
I have seen it used to shelter the guilty. A civilian DA was going to indict the former post commander of Fort Devens for various small time criminality. (His name was Richard Kattar and one of the deals was a kickback on rubbish dumpsters -- his payoff was an executive job on the sole-source firm on retirement). Actually the Mass Attorney General, Francis X. Bellotti, was gunning for him. The Army asserted jurisdiction and ordered Col. Kattar to active duty for the investigation... which investigated nothing, learned less, and just continued until Bellotti lost interest or an election -- I forget which. The Colonel's duty station during this period was his home, so he essentially went from retired on half pay to retired on full pay... still, I'm sure he would have given the money to skip the stress.
He had been a bit of an odd fellow anyway, which we attributed to a Korean War head wound -- he had some big gong from that unpleasantness, the SSM or perhaps DSC (I haven't looked him up). I'm sure he rests in Valhalla now. I'm not sure how I feel about the Army trying to keep an old hero out of a dumpster kickback scandal, but it's what the law types call "moot". (or as Kattar would have said, "a mute point." I think he was one of the Army's last high school dropout colonels!)
d.o.l.
Criminal Number 18F
I'd have to find the article, but I'm pretty sure my memory is correct.
One thing that struck me about that article was that it appeared that Green had been in the Army for a grand total of about 1.5 years.
What I've been able to find on the net here in the last few minutes is that it is unlikely that the Army will regain control of Green, but that he's liable for Federal Prosecution. He has been brought back to the vicinity of Ft Campbell, KY, however.
Will do kilowhskey!
Thank you for posting that interview, TexKat. I disagree with Chris Matthews' suggestion that Mr. Pantano go to law school. Our economy has no shortage to talented, aggressive and successful litigators. I suspect that Mr. Pantano will find greater personal success on Wall Street or the corporate sector.
Excellent post, chock full of information.
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