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Systemic Problems with the Military Justice System

I. Not all legal systems provide adequate protections of rights’ of their accused.  Consider one system where a single person has the authority to control the following : what charges to bring, whether those charges are felony level or misdemeanor, selection of the pool of potential jurors, the pot of money defense counsel need to pay for everything from site visits to expert witnesses, and the power to deny any witnesses that would cost money to produce.  Moreover, this same person is ultimately in charge of many of the very potential jurors whom he/she selected for the jury pool.  Furthermore, this person has the authority to send a case to a grand jury equivalent, but can then disregard that grand jury’s recommendation to not pursue charges and can send the accused to trial anyways.  Finally, this same person who sent the accused to trial to begin with, has the sole authority of whether or not to grant clemency.  Now, you may ask yourself, what tyrannical regime created such a body?  The answer to that may shock you.  It is the United States’ Military Justice system.  This system of “justice” is what is used every day to pass judgment against our young men and women in uniform.  So let’s talk about some of issues in more detail and then show how incredibly easy it would be to change this system in order to protect the rights of our service members. 

a. History of Military Justice System.

     The Military Justice System originates from the British system, specifically, the 1774 British Articles of War.  Though the system went through small changes over time, it was not until after World War II (WWII) where the system we know today came into being.  During WWII, over sixteen million people were serving in the U.S. military, the majority of whom were conscripts.  As a result of such a large force and the fact that it was made up of mainly conscripts who were unfamiliar with this much harsher criminal justice system, there were over two million courts-martial conducted and hundreds of executions throughout the war.  At this time, the rights of a military accused were not protected in the same manner in which a civilian accused would be.  In fact they had little to no protection.  Accused were not provided with counsel and there was no judge, but rather a jury determined what evidence would come in and ultimately the Convening Authority (accused’s commander) had the authority to decide who would be charged, what the charges would be, who would be part of the jury, whether clemency would be granted, etc.  And this system whereby commanders had such incredible authority was part of military law since its inception.  In fact, until the 1920s, accuseds’ commanders could continue to send an accused to trial over and over again if they were dissatisfied with the verdict or sentence. 

There is a school of thought that this harsh and “efficient” form of “justice” was necessary during WWII.  The idea is that since the military was so large and we were at war, absolute control by commanders over their troops was necessary.  Regardless, post WWII, the system came under heavy scrutiny.  Over the next several decades, Congress began to enact safeguards of a military accused’s rights and attempted to bring the system somewhat more in line with civilian criminal justice.  Military Judges came into being, “defense counsel” (more discussion on them later) were appointed, rights to appeal were enacted, etc.  However, the Convening Authority system continued to exist. 

b. Today’s System   

Over the years there have continued to be improvements in the Military Justice System and it now at least resembles something you may refer to as “justice.”  Without getting into too much detail essentially the system works like this:

Something, whether it be an allegation from an alleged victim or witness, a discrepancy found in a record, an anonymous tip, etc., but something causes an investigation to occur.  This investigation can be one carried out by the command itself or law enforcement.

After the investigation is completed, the Convening Authority, with the advice of his staff judge advocate, determines whether or not submit a request for legal services from the military prosecutors.

If a request is submitted, the prosecutors review the evidence and determine whether the case warrants charges in a special court-martial (similar to a misdemeanor) or a general court-martial (similar to a felony).

If it is a special court-martial, the prosecutors draft charges and send them to the Convening Authority for signature, which essentially serves to convene the court-martial.  The accused is then arraigned, dates are set for motions and trial, and it plays out much like a standard trial would in the civilian world.

If it is a general court-martial, then the Convening Authority is required to send the case to an Article 32 preliminary hearing.  An Article 32 is the military version of a grand jury hearing.  Typically, the prosecutor, defense counsel, accused, and an Article 32 preliminary hearing officer are present.  The government usually puts on enough evidence by calling witnesses or admitting documents for the preliminary hearing officer to determine the sufficiency of the charges on the charge sheet, a recommended form of charges, and which forum the case should be sent to (special or general court-martial).These recommendations are then sent to the Convening Authority for consideration.  If the Convening Authority determines that the case should be sent to a general court-martial, he can convene the court-martial at that level and it then plays out just as a special court-martial would.  The accused is arraigned, motions and trial dates are set, there are motions hearings, and eventually there is a court-martial.

Generally, and this is likely to change in the future for “lower level” cases, an accused has the right to decide if he/she will be tried by a military judge alone, or a jury consisting of all officers or a mix of officers and enlisted personnel. If a jury of officer and enlisted is requested, then at least one third of the panel must be enlisted and must be senior in rank to the accused.

While a contested trial plays out similar to the way a civilian criminal trial would, only two-thirds of the jury is required to reach a guilty verdict, which is a much lower standard then the unanimous verdict required in many jurisdictions.There is one exception for capital cases, where a unanimous verdict is required.

If a service member is convicted, the trial typically goes immediately into the sentencing.  Sentencing arguments and evidence is presented, further deliberations occur, and a sentence is handed down by either the judge in judge alone cases or the members (jury) in a members trial.

Following the sentence, the Convening Authority is still required to take action on the verdict and sentence, meaning approve it, partially approve it, or in some cases deny it.  Along with this, the Convening Authority also considers clemency matters submitted by the defense counsel.

If a service member is found guilty and receives a year or more in confinement or a punitive discharge (bad conduct discharge or dishonorable discharge), then the case will be automatically appealed to appropriate Court of Criminal Appeals based on whatever service the individual belongs to.For example, if it were a Marine who was convicted, it would go to the Navy and Marine Corps Court of Criminal Appeals.An appellate attorney would be provided to the service member at no cost.

If the appeal is denied, there is a possibility that the case could be appealed to the Court of Appeals for the Armed Forces (CAAF).However, CAAF has the authority to choose what cases reach them and they tend to give deference to the lower appellate courts.

If CAAF does hear the case, but denies the appeal, there is a chance that the United States Supreme Court would hear the case, however, this is extremely rare.

An appellate court could take a number of actions on a case depending on the facts, to include: sending the case back for a retrial, sending the case back for a rehearing on sentencing, or dismissing the case entirely with prejudice.

c. The problems and the easy solutions

     While the current military justice system is a vast improvement from its former self and accused service members are finally afforded some protections, there are still some shocking aspects of the system which are not part of any other criminal justice system in this country.  Consider the following

The Convening Authorities select not only the jury pool of all potential members, but also the pool of members that are selected to be the actual members for a particular court-martial.  There is a voir dire process where the members are questioned in an attempt to bring out any potential biases, but that does little to negate the danger of stacking a jury pool in favor of the government.  Really stop to think about this for a minute.  This would be the equivalent of a civilian district attorney or United States Attorney selected who shows up to court to sit as jurors in a criminal case.  While it would be naïve to think that some shiftiness behind the scenes has never happened, I am not suggesting that all or even most Convening Authorities commit this unlawful command influence.  But, the really issue is that there is no logical reason as to why this system operates this way.  Why even create such an appearance of impropriety?  I will hold off on how this can easily be fixed until after the next glaring issue with the military jury process is explained.

The second absurdity of the military jury process is that the members are part of the same command as the Convening Authority, which is why he/she is able to select the pool.  Aside from the obvious issue described above, this raises a host of other issues.  The power to become a Convening Authority is generally vested in the particular billet or job that a military commander has.  So, for example, if you are the Commanding Officer of Marine Corps Air Station Miramar, you are the General Court-Martial Convening Authority for all cases that come out of Miramar.  If you are the Commanding Officer of Headquarters and Headquarters Squadron at Miramar, you are the Special Court-Martial Convening Authority for all cases that come out of that squadron.  The problem with this system is that not only are you the Convening Authority, but for lack of a better word, you are the boss.  And everyone knows you are the boss.  Furthermore, in nearly every court-martial there are members who sit on the panel who work directly for the Convening Authority.  Believe it or not, this issue has been brought to the appellate courts multiple times and every time the answer is that it does not matter.  Again think about this from a civilian perspective.  What if the district attorney were able to not only select the jury pool, but in fact selected persons who worked directly for him/her.  It’s an absurd thought.  And it’s an equally absurd thought to believe that the jury members are not affected by this.  Consider it is their boss or their boss’ boss, the Convening Authority, who files the charges against the service member and orders for him/her to be court-martialed.  Furthermore, consider the ethics behind that decision.  A Convening Authority could not ethically send something to a court-martial unless he believed the service member committed the crime.  So what you are left with is a panel of jury members, selected by the Convening Authority, who work either directly or indirectly for the Convening Authority, and those members are sit on jury panels with the knowledge that the Convening Authority, the boss, believes that the service member committed the crime/s he is charged with.  To say that the danger of prejudice to the accused’s right to a fair trial is not threatened by this system is beyond naïve and more in the realm of fanciful.  And there is no kind of voir dire or jury instructions that will erase or mitigate this danger.  Furthermore, once again there is no need for such a system.  A simple fix is to just require that any members for court-martial must come entirely outside of the Convening Authority’s command.  Sure, other commands may be left a bit short handed for a few days at a time because they will have to supply jury members for a court-martial that does not even fall under them, but that is a small price to pay to ensure a service member is afforded his Constitutional rights to due process and a fair trial.

Another major problem is with the military justice system is lack of prosecutorial discretion.  An all too common fact pattern in military is this: A group of service members go out drinking.  A drunk male service member has sex with a drunk female service member.  Based on ridiculous training that the military has received over the past several years, to include being told that if any amount of alcohol is consumed then there can be no consent to sex, a sexual assault is reported.  Because the incident occurred off base, civilian authorities investigate and determine that there is no probable to bring charges.  Then jurisdiction is turned over to the military and a request for legal services is submitted to the relevant military prosecutors.  Now remember that a civilian prosecutor already reviewed the case and determined that it would be inappropriate to file charges.  However, even if a military prosecutor comes to that same conclusion and recommends to the Convening Authority and the Staff Judge Advocate that no charges be filed, that prosecutor has no actual discretion to not file charges if ordered to do so.  That authority is vested solely in the Convening Authority.  There is one very apparent problem with that and another that is a bit more nuanced.  The obvious issue is that 99 times out of 100, the Convening Authority is not a lawyer.  In some rare instances, a judge advocate (military lawyer) is serving in a command billet where they are in fact a Convening Authority, but this is pretty uncommon.  Aside from that exception, Convening Authorities have little to no legal training, and are instead are experts in fields like infantry, artillery, logistics, and flying jets.  And yet they are given the authority to make extremely significant legal decisions.  This is completely illogical and certainly does not work the other way.  A pilot does not ask a lawyer how to fly a plane or helicopter and nor should he.  Pilots receive a several years of training and on the job experience to understand how to fly.Lawyers, on the other hand, go through 3 years of law school, pass a state Bar exam, attend a military legal specialty school, and then gain on the job experience.  They are highly qualified to make the legal decision as to whether or not charges should be brought against a service member and yet their opinion is advisory at best.  And this goes hand in hand with the more nuanced issue with this system and that is the incredible pressure that the commanders are under from Congress.  Over the past several years, Congress has put the military in its cross hairs and arbitrarily decided that they are soft on sexual assault and that more allegations of sexual assault must be brought to trial.  In fact, there have been instances where Convening Authorities have used their discretion to not push forward to trial and have been punished for it by their superiors.  This places the Convening Authorities in a very precarious situation.  Even when civilian authorities decline to prosecute and military prosecutors recommend not filing charges, there is still little to no incentive in their minds to not move forward to a court-martial.  In their minds, they can justify it by saying that the system should play itself out and if the service member is found guilty then he/she probably committed the crime.  And if the service member is acquitted, well it must have been the prosecutor’s fault and at least the Convening Authority won’t get into trouble.  Aside from being unethical, the problem with that sort of thinking is that it ignores the fact that under our beyond a reasonable doubt system, innocent people are convicted too.  Nearly every day the various Innocence Projects throughout the country are exonerating people who were convicted of things they did not do.  It is the job of the prosecutor to help be a check on this and to help ensure that innocent people are never charged with crimes in the first place.  Yet, as mentioned, under the military justice system this ability has been taken away.Again, play this out in the civilian world.Imagine a situation where a district attorney recommends that no charges be filed, but that some random politician or businessman, who has no legal training at all, disregards the recommendation and orders the district attorney to file charges.It is yet another absurdity of the system, which sadly does not need to exist.The solution is extremely simple.Give the discretion to the lead military prosecutors in a particular jurisdiction.These individuals typically have 15+ years of experience, beyond all of the legal training they receive.It is preposterous to argue that they do not have the ability to make these legal decisions, especially when it’s currently non-lawyers who are doing so.The main argument used by opponents to such a system is that these prosecutors are not in the best position to make determinations that affect the good order and discipline of military units.However, this argument ignores the fact that these prosecutors have been in the various military services for over a decade and certainly know a thing or two about good order and discipline in a unit.Additionally, and call me idealistic, but I believe someone’s Constitutional rights should take precedence over good order and discipline.

Next, is the authority of Convening Authorities to entirely ignore all recommendations from the Article 32 hearing.  Now this is highly unusual when you compare it to the civilian practice of law.  Outside the military, a Grand Jury is the body which determines whether or not someone can be indicted.  If, after hearing the basic evidence of a case, they determine that there are no reasonable grounds to go forward with a case, then that is the end of it, unless any additional evidence is discovered.  However, in the military, the Convening Authority has the power to entirely ignore the Article 32 report and go forward to trial anyways.  This also brings us back to this lawyer vs. non-lawyer quandary.  The Article 32 preliminary hearing officer is a trained and barred attorney.  In contrast the Convening Authority could be anything from an infantry officer to a helicopter pilot.  To say that the attorney is better equipped to make a reasoned and intelligent decision as to whether or not someone should face a trial then the non-lawyer Convening Authority is an understatement.  Additionally, the attorney is under ethical obligations from their state bar to ensure that they are not making decisions which send likely innocent service members to trial when there are no reasonable grounds to do so.  Yet this goes back to fact that the Convening Authority has no incentive not to push a case forward to trial beyond whatever his/her moral compass tells them is right or wrong.  As far as their career progression goes, they will certainly not face negative consequences by pushing for more courts-martial and in the words all too often spoken, “letting the process play itself out.”  The obvious problem with this attitude however is that the process does not always play out right.  Innocent people are convicted every day and guilty people walk free.  Our entire system of law is built on this understanding.  And that can easily be seen by simply looking at our burden of proof, guilty beyond a reasonable doubt.  By creating a system where someone can have their freedom taken away from them when a crime is proven only beyond a reasonable doubt in and of itself shows an understanding that at times innocent people can be found guilty.  If this were not the case then the standard would be guilty beyond all doubt. If this were the burden then many more guilty people we go free, but the number of wrongly convicted would drop significantly.  However, our ancestors weighed this issue and determined that the danger of some being wrongfully convicted was acceptable in order to ensure that more guilty individuals were convicted.  And where this all ties in with the vast powers given to the Convening Authority to bring what amounts to any and all allegations to trial is that this exponentially increases the amount of potential wrongful convictions.   

As mentioned above, there is also an issue of clemency.The concept of clemency dates back hundreds of years.In 1883, a group of four Australian sailors were lost in a storm out at sea.Their ship capsized and they ended up on life boat.They were 700 miles from land and after going for weeks without food, they began feeling were starving to death.One of these four men, named Parker, made a fateful decision and started drinking sea water, which made him very sick.And the other three men decided that if they did not get some food, they were all going to going.So, they killed Parker and ate him.A number of weeks later they were rescued by another ship.Parker’s remains were still onboard the life boat, and they immediately admitted to what they had done and were then put on trial for murder.At trial they raised the defense of necessity, arguing that they did not kill him they all would have died.The court did not accept this, however, and all three were convicted of murder and sentenced to death.After the conviction, however, Queen Victoria commuted their sentence, reasoning that anyone else in their position would have done the same and that it was better to save three then lose all four.Law upheld and then let them out back door.This power brought to American and put in Constitution.Article II, Section 2, states, “The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment.”You have likely seen this power be used by the outgoing Presidents on their last day in office.Governors also have the power to grant clemency for cases in their respective states.And, for purposes of military law, who has the power to grant clemency…you guess it, the Convening Authorities.Again, this is highly problematic, because they are not a neutral and detached third party.To the contrary, they are the ones who sent the servicemember to trial to begin with.This would be like the district attorney or the U.S. Attorney having the authority to grant clemency.It is yet another example of the archaic nature of the military justice system and the inappropriate powers given to the Convening Authorities.

Another aspect that needs to be addressed is the further separation of defense counsel from the government.The military has come a long way in this area, but more needs to be done.Back in 1980s defense counsel fell under the same report chain of command as the prosecutors.This stopped once 60 Minutes did a story on the Marine Corps defense counsel at Marine Corps Air Station El Toro, showing that every single prosecutor was being ranked higher by the commanding officer for purposes of their performance evaluations.While those days are in the past and all defense services now have their own chains of command, the government still has too much influence over them.For example, although performance evaluations of defense counsel are handled by their superior defense counsel, they are still administratively attached to the government chain of command.This means that for purposes of requesting and being granted leave, receiving personal awards, and for conducting training, the government chain of command is the gate keeper.Moreover, the Headquarters commands are the ones who draft orders and decide future duty locations for all members of their respective legal communities.Therefore, they have the ability to place whoever they want in undesirable locations or jobs.Additionally, the legal communities in the Marine Corps are highly incestuous.Defense counsel move back and forth between serving as prosecutors, defense counsel, and staff judge advocates every 18 – 24 months.There are even common sayings from many in the government to defense counsel that they need to be careful since they have to “come home” to the government side at some point and that being a good defense counsel is bad for your career.And there is truth to these statements.During my time on active I personally witnessed four of the best defense counsel in the Marine Corps forced out based on aggressive advocacy and success.So while the military has come a long where, they have a lot further to go.While separating entirely from the government is not feasible in the military, there can certainly be greater separation.Some changes that can easily be implemented are: permit the defense chain of command to draft and approve awards and approve leave for defense counsel, place someone from the defense chain of command at the respective Headquarters to ensure that defense counsel are being treated the same as members of the government, and provide training to remove this idea that aggressively advocating for their clients will not adversely affect their careers.

II. This is a relatively wave top discussion of the military justice system and some of the major pitfalls and problems with it.  While it has been improved upon over the years, it is still an archaic system when compared to the various state and federal district systems throughout the country.  There are a handful of simple yet significant changes that could be made in order to bring it up to speed with the rest of the country.  The men and women of the armed forces have agreed to put themselves in harm’s way in order to ensure that the fundamental and Constitutional rights of the American people are defended.  Therefore it is completely inexcusable that all efforts and protections are not put into place to ensure that those young men’s and women’s rights are not afforded the same protections.

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