Read this article this morning. I thought it gives a clearer view of the military's legal process than I ever could.

Patti


The military legal process – an overview



When members of the Armed Services are accused of committing a crime, their commander decides how to handle the case. The accused can receive a military trial, known as a court-martial.

In less serious cases, the commander has the discretion to deal with the charges, and mete out punishment, administratively through a nonjudicial hearing under Article 15 of the Uniform Code of Military Justice, the body of U.S. military law.

It is up to the commander of the accused to determine if the crime is serious enough to warrant a court-martial.

Nonjudicial punishment, which in the sea services is called a “captain’s mast” or “admiral’s mast,” provides commanders with a means of addressing a problem without risking the stigmatizing effect that a court-martial could have upon a service member.

There are three types of courts-martial.

• General courts-martial — for felonies and more serious crimes. The panels that hear them, which are similar to civilian juries, must consist of at least five members.

• Special courts-martial — for less serious crimes. Panels must consist of at least three members.

• Summary courts-martial — for resolving minor issues involving enlisteds. They are heard before one judge.

In any court-martial, an accused service member has the right to request a trial heard by a single judge, rather than a panel.

The military community has nothing comparable to the standing courts established by every civilian community in the country. Each time a criminal case arises, commanders have the discretion under military law to “convene” a court, which in turn will try the accused before a jury of military members.

Commanders exercise the same power as local civilian judges. Generally, commanders act upon the advice of staff judge advocates, military lawyers who act as prosecutors. Senior military attorneys who are appointed as judges hear court-martial cases, not commanding officers, as a rule.

Other staff judge advocates serve as defense attorneys. Accused service members are entitled to free representation in court by a military defense attorney. They also may hire civilian attorneys to handle their case.

No service member can be tried at a general court-martial until a pretrial investigation has been completed. These pretrial investigations, known as “Article 32” hearings because that is the section of the UCMJ that addresses them, are similar to civilian grand jury investigations.

Accused service members have rights, which are defined in the Manual for Courts-Martial. They must:

• Be informed of the charges for which they are being investigated;

• Be told who their accuser is;

• Be represented by a lawyer;

• Have access to witnesses who may offer evidence either for or against them;

• Be allowed to present a defense.

The actual list is, of course, much longer and more detailed.

Convicted service members may appeal their convictions.

At the first appellate level are the Army Court of Criminal Appeals, the Air Force Court of Criminal Appeals, the Navy-Marine Corps Court of Criminal Appeals, and the Coast Guard Court of Criminal Appeals.

The military’s highest court, the U.S. Court of Appeals for the Armed Forces, has the authority to hear appeals from these lower courts. Seated in Washington, D.C., the court consists of five civilian judges.

The U.S. Supreme Court can reconsider cases from the Court of Appeals for the Armed Forces.

Just as an addendum to the article...

The convening authority has almost unlimited discretion in deciding whether to refer charges, if at all, and exactly what the charges will be. The CA also has unlimited discretion in sentencing--can approve a recommended sentence, decide no sentence at all is appropriate, or anything inbetween. The CA approves all pretrial agreements and no matter what the adjudged sentence is, the actual sentence is limited to the agreement. If the court martial adjudges a lesser sentence than the pretrial agreement gives, the military member gets the benefit of the lesser sentence. One other right the military member has in a general court martial is the right to choose whether to be tried by a panel of officers only, or a panel consisting of both officers and enlisted personnel. Also, on appeal of a capital conviction (death, not life), the President must approve the sentence before it can be carried out. Just one more appellate level that civilian courts do not have.

That is indeed not a bad article. It reminds me of the briefings I received on the UCMJ in most of the schools I attended while on active duty as an enlisted member or officer. I'll have to admit that I mostly tuned out on those classes, retaining just enough to pass the exam. After all, it was never going to affect me. Right?
Somebody once said that life is what happens when we have made other plans.
First, I agree that the convening authority has a huge amount of discretion. He determines what goes to trial and what sentences are appropriate. The Article 32 investigation is a pale imitation of a civilian Grand Jury. The most important difference between the two is that the Article 32 investigating officer works for the person bringing the charges, that is, the CA.
The fact is, if a case gets to the point of an Article 32 investigation, it is going to a General Court Martial, unless the CA wants it hushed (I didn't make that up; I was so informed by a US Army appellate lawyer). The option of offering the accused nonjudicial punishment, usually referred to as an Article 15, is supposed to be for the purpose of sparing him or her the stigma of a court martial. A commander is supposed to use the Article 15, if he has enough evedence to get a conviction in a Court Martial, but feels the individual should be offered clemency. I have seen Article 15's used as a hammer in cases where there probably wasn't enough evidence to get a conviction. An individual under threat of a General Court Martial is scared out of his wits, and rightly so. The punishments are so severe, he will take any out, even if it means accepting punishment he feels he doesn't deserve.
Now on to the Court Martial. A General Court Martial panel consists of a group of officers or senior enlisted personnel, all of whom work for the individual bringing the charges in the first place, that is, the CA. They are beholden to him for their careers, and that is in a military environment where a single bad (or just not-excellent) mark on an efficency report can effectively end a career.
The prosecutor works for the Judge Advocate General (JAG), who is the senior legal advisor to..who again??... oh yes, the guy bringing the charges. He has the full funding of the government to do things like travel to interview witnesses. As the senior legal advisor to the CA, he also has unlimited access. The Defense Attorney, on the other hand, works for the Army Legal Defense Agency. Neither he, nor anyone in his chain of command are directly in the chain of command of the Convening Authority. In theory, this is to give some independence, and it does. Unfortunately, the defense attorney also has no funding for the things he needs to do, like travelling to interview witnesses. In order to obtain funding, he must ask...are you ready for this?... the JAG. That's right. The Defense Attorney is dependent for the funding of his investigation and defense on the boss of the prosecutor, who works for the guy bringing the charges, i.e., the CA.
As you might expect, the UCMJ has a very high rate of convictions. Most lawyers advise anyone under threat of Court Martial to avoid it if possible by resigning or taking a lesser punishment in the unlikely event it is offered.
What you really need to know about the military justice system boils down to this: It is intended for the purpose of enforcing discipline. Period. Unlike the civilian justice system, which at least in theory is there to protect the rights of the accused, the military justice system is there to convict and to punish as severely as possible. And they do their job well.
Think I am making this up, or perhaps overstating the facts? Most of us who have fallen under the UCMJ know all too well the kinds of things I have described here. In May 2001, the landmark Cox Commission Report, a major review of the military justice system was published. It recommended a major overhaul of the system in the areas I have described and more. The silence from the Department of Defense and Congress was deafening.
One possible positive outcome of reinstating the draft (which I don't think will happen) would be a reawakening of public interest in the UCMJ. Since the '60's, out of the public eye, it has continued to erode the freedoms of the very people who have put their lives on the line to defend it.
For further information, I suggest you look at www.militaryinjustice.org.

Dave, I agree with most of what you said, especially regarding the lack of funding for defense counsel. The Cox Report was right on point, and unfortunately, ignored. My personal experience with UCMJ required extensive research for defense counsel because he didn't have time or resources. Sad state of affairs. However, I will say that some of the court martial procedures set out higher levels of due process than our civilian courts and are more strictly adhered to. As you said, the purpose is to enforce discipline, and if you read the Manual for Courts Martial, or Title 10 itself, there is a general caveat that provides discretionary authority to "maintain order and discipline." On the whole, I'm satisfied with the procedural due process my son received, and very pleased with the representation provided by his defense counsel. Unfortunately, I can't say the same about the command group's attention to other aspects of their prosecution. Interesting that you should recommend Military Injustice's website, as my son mentioned it to me recently as well. I had visited the site months ago and found it informative, but definitely biased.

At any rate, let's keep the discussion open and on-going. Since the UCMJ and it's procedures are pretty much unassailable by civilians, it's important that anyone with information share with others.

~ Lisa

Forgot to mention that I would prefer an Article 32 hearing to a grand jury sitting any day! My personal theory is that grand juries violate a person's First, Fifth and Sixth Amendment rights. At least at an Art. 32, the "defendant" gets to attend, present testimony and witnesses, and it's a public process. Not so for grand juries. The well-worn quote that "a good prosecutor can indict a ham sandwich" pretty much says it all about civilian grand juries.

~ Lisa