Murphy's Law: May 13, 2000


MILITARY VS CIVILIAN LAW: Most civilians, and a good deal of the military, do not realize all of the differences between a trial under military and civilian law. The Uniform Code of Military Justice was created in 1950 (after WWII vets who ran afoul of the law complained to their congressmen that military justice was anything but just) and has survived for 50 years with incredibly few changes. A civilian suspected of a serious crime cannot be prosecuted until a Grand Jury (a panel of a dozen or more upstanding citizens) is convinced by the District Attorney that there is enough evidence to justify a trial. Witnesses are interviewed only by the DA, and cannot have their own lawyers. The potential defendant and his attorney cannot participate, and may not even know the Grand Jury is meeting. In a military Article 32 hearing, things are somewhat different. The Grand Jury is replaced by a single investigating officer. Both the prosecutors and the defense take part, call witnesses, and cross-examine witnesses. [Due to the fact that military personnel move around a lot, the investigating officer might accept written statements from witnesses who are not immediately available, something no Grand Jury would allow.] Both sides can use any inconsistency between Article 32 testimony and trial testimony to impeach a given witness. While a DA cannot go forward without an indictment, the prosecutors can accept or ignore the recommendations of the investigating officer.

Plea bargains exist in both military and civilian law. Under military law, however, the judge does not know what deal was struck and issues his own sentence. The defendant receives the lower of the two sentences (the one from the judge or the one from the plea bargain). The defendant can, with or without a plea bargain, have his punishment set by the trial board, the military jury, instead of the judge. Most ask for the judge to set the punishment, assuming that a panel of officers will impose a tougher sentence. There are only about 20 military trial judges for the entire US Army; about 30 more for the other services. Unlike civilian judges, these do not work in a single district but continually travel in a circuit so they cannot be influenced by a post commander. The Army will fly any needed witness to the trial, but the judge decides who is really needed. In a military trial, the defendant is automatically given a military lawyer. (In low-level cases or in a combat theater, officers who are not lawyers may serve in this role.) If he wants to pay for a civilian lawyer, his military lawyer remains on the case. Unlike the television show JAG, real military lawyers are permanently divided into defense and prosecution offices which are completely separate, and the investigators are a totally separate unit. (But then, real JAG lawyers rarely go on secret missions, either.) The equivalent of the public defenders are the Army Trial Defense Service (and similar units in the other branches), lawyers equal to their colleagues in the prosecution and generally superior to the overworked civilian public defenders.

In a civilian trial, the court calls about 70 citizens from driver's license rolls or other records. Each side can question the potential jurors, remove some for cause if they can, and reject or strike a dozen potential jurors. The 12 surviving jurors with the lowest numbers then serve on the jury. In a military trial, a much smaller panel of 10-12 potential jurors is taken from a list for the installation where the trial takes place. Each side can reject only one juror without cause, or any number if cause can be proven. A court martial panel can have as few as five members (three for lower offenses). An enlisted man can demand that one-third of the panel be enlisted personnel, but this is not always done as the selected panel members are likely to be tough veteran sergeants with
less compassion than officers. 

Unlike civilian juries, the military Court Martial Board need not remain silent. They can question the witnesses themselves, and can even demand that additional witnesses be called. (In one case involving a truck that was accidentally left in gear, the court martial board rejected the testimony of the prosecution witnesses and sent for other mechanics from a nearby motor pool to provide another view on a technical issue. These mechanics, having not been prepared for the trial, provided unrehearsed testimony.) Unlike a civilian jury that usually must be unanimous, a military trial panel needs only a 2/3 majority to convict. There are no hung juries in military courts; without that two-thirds majority, the result is not guilty.

In a civilian trial, a convicted felon often waits weeks for a separate phase of the trial to determine his sentence, and may be released on bail pending sentencing or appeal. In a military trial, the convicted man is sentenced by the same judge or panel, often on the same day, and is then taken immediately to jail. There is no release on bail pending appeal. There are no more post stockades. Enlisted men sentenced to less than five years do their time at one of five regional jails; all officers and those enlisted men with longer sentences are sent to Fort Leavenworth. Military trials do not have mandatory minimum sentences (except for a very few of the most serious crimes; murder requires at least life in prison). The Court Martial regulations provide the maximum sentences, and the Court Martial Board may impose anything from no punishment to the maximum. (Smaller "Special" courts martial can impose no more than six months

The convening authority (i.e., the general commanding the fort where the offense and trial took place) can reduce the sentence. Any sentence of death, a year or more in prison, or a bad conduct discharge, the case is automatically sent to the military appeals court. Further appeals can be made to a five-judge civilian panel and then to the Supreme Court. --Stephen V Cole


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