Published September 2005 in the Washington State Bar News
by Stephen H. Carpenter, Jr.
"You can't handle the truth!"
Col. Nathan R. Jessep, A Few Good Men (1992)
These five words are etched in the memories of many moviegoers. In the legal thriller A Few Good Men, Tom Cruise plays Navy Lt. Daniel Kaffee, a military defense lawyer charged with defending two Marines accused of killing a peer. In the movie's climactic moment, staged during a heated cross-examination, Col. Jessep, played by Jack Nicholson, admits to having ordered the "code red" authorizing the attack on the deceased Marine. Lt. Kaffee's cross-examination wins the day, outwitting Col. Jessep, and earning the acquittal of his clients of murder.
While portrayed as a closed system in A Few Good Men, the military system of justice is actually readily accessible to civilian lawyers. However, true to Hollywood's portrayal, few Washington attorneys ordinarily appear in military courtrooms. This is surprising. Fort Lewis contains the seventh largest troop population in the United States. Thousands more are stationed at the Madigan Army Medical Center, McChord Air Force Base, and in the Naval Stations located in Bremerton, Everett, Whidbey Island, and Bangor.
This large, underserved uniformed population presents a great opportunity to expand a litigation practice. Unfortunately, some in the news media demonstrated a clear misunderstanding of the court-martial system, including the perhaps widespread belief that soldiers enjoy fewer constitutional protections than civilians. Often the opposite is true.
In order to both educate and perhaps spark an interest in this practice area, this article explores the similarities and differences between two systems of justice, the courts-martial system and its civilian counterpart. I will address the article from an Army perspective simply because there are more soldiers in Washington than Air Force and Navy personnel. However, other than the rank structure, the justice systems in each service prove largely identical.
Sources of Law — The Courts-Martial
President Truman signed the Uniform Code of Military Justice (UCMJ) into law in May 1950. The Manual for Courts-Martial (MCM) followed one year later. Together, they have been continually revised, most recently in 2002. The MCM is a compilation of military rules of substantive and military procedure. In it, the Rules for Courts-Martial (RCM) address how a case is processed from pretrial to posttrial. These rules have been adopted from parts of the Federal Rules of Criminal Procedure. Moreover, the Military Rules of Evidence (MRE) discuss the evidentiary rules, themselves largely similar to the Federal Rules of Evidence. Finally, the penal articles of the UCMJ list 113 crimes, along with their respective elements, definitions, defenses, and authorized punishments.
Jurisdiction and Double Jeopardy
Soldiers and other service personnel on "active duty" are subject to the UCMJ, whether at home or abroad. Members of the National Guard and Army Reserve are also subject to the UCMJ when activated to serve on active duty. In addition to the UCMJ, these uniformed personnel are still subject to state and federal prosecutions. In Washington, for instance, soldiers are technically not precluded from further criminal prosecution following a state conviction for the same crime. However, the Fifth Amendment, the UCMJ, and the MCM prohibit being tried twice for the same crime in federal district court.
In many military reservations, civilians are subject to exclusive federal jurisdiction; thus, civilians who commit crimes on post may be subject to prosecution only by the U.S. attorney. These rules at home also now apply overseas. The Military Extraterritorial Jurisdictional Act of 2000 (MEJA) now permits civilian federal law enforcement to remove U.S. citizens to the United States under three circumstances. If the accused violates certain U.S. Code provisions that carry a potential prison term exceeding one year; if the host nation waives its right to prosecute the American offender; and if a federal magistrate judge decides, despite arguments from military defense counsel, that the accused probably committed the offenses alleged.
Players in the Court-Martial System
The defendant in a court-martial is called "the accused." He or she becomes the accused only after court-martial charges are "preferred" or read to him by his company commander, who is ordinarily a captain. The preferral process is similar to an out-of-court arraignment. It is legally significant because the soldier's speedy-trial rights are automatically triggered by it, requiring the soldier be brought to trial within 120 days. The same is true after a soldier is placed in pretrial confinement. In both cases, military defense counsel is notified and detailed to represent the soldier, sailor, or airman.
Courts-martial are "referred" by the commanding general (CG) of the installation. The "referral" of a criminal case is the equivalent of a grand jury returning an indictment. This occurs only after intermediate commanders make recommendations to the CG about whether they think the charges should be referred and if so, to which level of court-martial. In the military, so-called misdemeanor-level offenses are ordinarily sent to a special court-martial empowered to adjudge a bad-conduct discharge. The felony-like offenses are referred to a general court-martial. In both cases, the CG makes the referral decision based on non-binding advice from the defendant's three subordinate commanders: specifically, a captain (company commander), a lieutenant colonel (battalion commander), and finally, a colonel (brigade commander). These three officers comprise the defendant's so-called "UCMJ chain." After a case is referred, the charges are sent to the military judge, who sets the case for arraignment. The military judge is a lawyer, criminal-law specialist, and often a senior judge advocate with a proven track record in military justice, whether on the prosecution or defense side. A soldier legal specialist, who acts as court reporter, usually aids him. However, this role is increasingly being filled these days by civilian court reporters. It is the court reporter's duty to record and transcribe the record of trial, which, in cases resulting in discharges or imprisonment in excess of one year, must be verbatim.
In courts-martial the "Government" is represented in court by judge advocate generals (JAGs) who have been designated as either a senior trial counsel (STC) or trial counsel (TC). These job details usually last 12 to 18 months. Their supervisor is the chief of military justice, usually ranked a major, who oversees more administrative matters, most notably post-trial processing. This person reports directly to the staff judge advocate (SJA) who is the chief legal advisor to the commanding general.
On the other side of the bar sits the detailed military defense counsel (DC). In the Army JAG Corps, one cannot become a DC without first being a TC. As such, the DC is almost always more experienced than the TC. The DC reports to the senior defense counsel (SDC), who in turn, reports to the regional defense counsel (RDC). The latter rarely tries cases, and the former often sits as second chair with the DC in trial. In cases with civilian counsel, only one military defense counsel is ordinarily permitted.
The jury in the military is called a "panel." It is composed of commissioned officers, warrant officers, and senior enlisted personnel, all of whom are called "members." They are selected by the commanding general from a large candidate pool, and ordinarily serve six-month terms. The foreman of the jury is called the "president" of the panel.
When civilians are arrested, they are ordinarily held in jail until an initial appearance before a judge or magistrate, who sets bond and the conditions of release. In most cases, military accused are held in jail for a brief period of time and often returned to the unit. The military rules favor returning the soldier back to work with restrictions to post and orders to report periodically. It is only in matters of "last resort" that confinement is imposed.
There is no system for bail in the military. The soldier still receives the same Fourth Amendment protections as he would as a civilian. For example, a service member may be placed in pretrial confinement only if the commander believes that 1) probable cause exists that an offense has been committed under the UCMJ; 2) the accused committed it; and 3) confinement is necessary to ensure appearance at trial and/or the soldier will engage in otherwise serious misconduct. It must also be shown that lesser forms of restraint would be inadequate.
Within 48 hours of the confinement, a "neutral and detached" military magistrate must make a written probable cause determination in writing as to the propriety of continuing the detention. Finally, no later than seven days after confinement, the magistrate holds a nonadversarial hearing to consider the matters surrounding the confinement. Present at this hearing are the detainee's commander, the prosecutor, the military or civilian defense counsel, and the accused. If the accused is released, he returns to his unit; if retained, he earns pretrial confinement credit if ultimately sentenced. Sometimes judges may reward additional confinement credit for illegal pretrial punishment and restraints under Article 13, UCMJ. The general rule is that the restraint should be no more restrictive than necessary to ensure the soldier's presence and prevent foreseeable serious misconduct.
Right to Counsel
The service member's right to an attorney is not only grounded in the Sixth Amendment of the Constitution, but also in the UCMJ and MCM. His rights to counsel are broader than in the civilian sector. In a court-martial the soldier is automatically detailed a defense attorney without regard for ability to pay or possible sentence. Of course, the accused may still retain a civilian counsel at his own expense.
Under article 31(b) of the UCMJ, military investigators and police must advise soldiers of their rights against self incrimination whenever the soldier is reasonably suspected of a crime. These rights are not dependent on custodial interrogation. When custodial factors are clear, however, Miranda and the right to counsel also attach. In either case, failure to advise a soldier of his article 31(b) rights will result in the suppression of his statement.
Article 32 Investigation and Discovery
The Fifth Amendment right to a grand jury indictment, by its express terms, is inapplicable to uniformed personnel, in the same manner that it does not compel indictment by grand jury in state courts. The so-called UCMJ "Article 32 investigation" is the military surrogate of the civilian grand jury. Accordingly, a soldier may not be tried by general court-martial, as discussed prior, unless there has been a thorough pre-referral investigation by a neutral and detached investigating officer (IO). The brigade commander appoints the IO. He is usually not a lawyer, but sits in a quasi-judicial role during the hearing.
Prior to the hearing, the government must provide the defense team with discovery. Liberal discovery rules require the government to disclose all documents accompanying the charges, as well as names of witnesses, their written statements, if any, along with known statements of the accused and all evidence seized from him. Defense counsel is thus able to flush out the government's case, weeks — if not months — before arraignment.
During the Article 32 hearing, the prosecution calls witnesses and offers documentary evidence. The accused and counsel are not only present, but have the right to cross-examine adverse witnesses and even present a defense. Witness testimony is taken under oath and tape recorded. Securing witness testimony at trial on the merits of former testimony is allowed if the witness becomes unavailable. In cases where soldiers deploy or leave the military prior to the Article 32 hearing, defense counsel can request sworn depositions.
Civilians can also testify in Article 32 hearings, but cannot be compelled to do so under subpoena. Only soldiers ordered to appear by their commander can be compelled. Prosecutors, as a matter of course, sometimes argue that soldier witnesses are "unavailable" and therefore cannot testify at the Article 32 hearing.
Because they only must prove their case by a preponderance of the evidence at hearing, prosecutors only present portions of their anticipated case-in-chief to the IO. Defense counsel often stress to the IO that the examination of more evidence is needed for a thorough and fair investigation.
After the hearing, which can sometimes take weeks, the IO drafts a written report. It details his findings of fact, notes defense objections, discusses the propriety of the charges, and offers recommendations as to disposition of the case. The IO recommendations are merely advisory, and the appointing authority can summarily disapprove them. If a defense counsel persuades an IO to see things his way, she is encouraged to meet with the soldier's brigade commander before his referral recommendation is made to the commanding general.
Discussions between the parties are categorized. Off-the-record discussions between the parties, not including the accused, are termed UCMJ "Article 82 conferences." Sessions with the accused present, in trial, are called UCMJ "Article 39(a) sessions." Such sessions ordinarily occur as entries of plea, motion hearings, and arraignments.
At arraignment, both sides merely place their qualifications on the record, an exercise that is completely scripted. A civilian counsel need only assure that he is an active member in good standing with his state bar to qualify to represent his client. The parties then discuss likely trial dates, and defense counsel preserves the right to file motions later. Entry of pleas and forum selections are often "deferred" to enable the defense counsel to enter meaningful discussions with the prosecution about a deal. Ordinarily, the entire arraignment process should not take more than 20 minutes.
Like federal and state courts, the jury size varies depending on the seriousness of the crime. Special courts-martial must have not less than three members, general courts-martial not less than five.
The military judge presides in a black robe. But the JAG attorneys, the accused, and panel appear in the Army "dress green" uniform, adorned with service ribbons on their chest and now, quite often, combat patches on their sleeves.
Juries in military courts have much more freedom than in civilian courts. For instance, they may write out questions for witnesses called to the stand. If all parties agree, the questions are read aloud for the witness to answer. This peculiar aspect of trial practice, personally involving the jury, sometimes provides a wealth of information as to their thoughts on the case prior to deliberation.
The verdict in a court-martial may be less than unanimous, except in death penalty cases. A two-thirds vote is required to convict; anything short of it results in an acquittal and not a hung jury. RCM 921 military juries, unlike federal juries, can actually sentence the service member. Unencumbered by federal sentencing guidelines, these juries may impose everything from the maximum sentence allowed by law to "no punishment."
In courts-martial, after a sufficient showing by the defense, the prosecutor is compelled to physically produce defense witnesses needed for motions and trial. The government must also cover all associated costs of production, including travel and lodging. Moreover, the trial counsel must produce, at cost to the government, defense expert witnesses shown to be both relevant and necessary. These benefits, including the fact that seasoned military defense counsel are also detailed free of charge, should make practice in military courts a particularly attractive endeavor for civilian counsel, not to mention the relative inexperience that many trial counsel suffer from having never before appeared in court.
The court-martial process weighs heavily on the prosecutor and his military justice shop. When the judge is dissatisfied with something, it is always the prosecutor's fault. The young trial counsel is also routinely burdened with requests from his myriad commanders about minor problems with soldiers — problems that call for solutions that usually fall far short of court-martial level offenses. Trial counsel is also routinely tasked to assist in other areas, such as teaching various classes that take them away from the day-to-day job as prosecutors. Defense counsel, on the other hand, merely represent accused, and, therefore, have a much greater period of time to dedicate to pending courts-martial.
Often it is a good practice to have Chapter 10 requests for discharge in lieu of a court-martial signed by the accused prior to arraignment. The benefit of its approval by the commanding general is that your client avoids a federal conviction, jail, and a punitive discharge. The bad news is that his career in the military is over and his discharge will probably read under "other than honorable conditions" (OTH Discharge). Depending on the service member's years in service, some tenured soldiers risk going to a court-martial. Accordingly, defense counsel is left with the task of persuading the judge or jury not to "kick his client out." When counsel avoids a discharge, they preserve their client's eligibility to reach 20 years and retirement. As a result, the soldier simply returns to his unit after serving out the other parts of his sentence.
In this vein, civil practitioners must be mindful that sometimes commanders attempt to administratively separate soldiers who were retained at court-martial. They simply rely on the court-martial conviction to justify the administrative separation. In such cases, so long as the accused does not have six years in service, the UCMJ chain will initiate his separation under "general under honorable conditions" (General Discharge). In this case the soldier does not receive a board. In fact, it is merely a paper drill culminating with the person most embarrassed by the soldier's return, the brigade commander, signing his name to a memorandum that terminates the soldier's chance at making retirement. But, in cases where the accused has over six years in service, he automatically qualifies for a board, and therefore his UCMJ chain will press forward with a OTH chapter action, a characterization that entitles the soldier to a board regardless of his years in service.
Guilty Pleas and Sentencing
Guilty pleas in the military are handled quite differently than in civilian practice. In the military, accused may not enter pleas of nolo contendere, or no contest. It is either guilty or not guilty. Before the military judge can find an accused guilty, he must go through a lengthy and in-depth "providence inquiry," or discussion, with the accused on the record to ensure he is factually guilty and that no possible defenses exist for his misconduct. Depending on the crimes at issue, the providency inquiry can last hours. The fact that providency can be "busted" by a few insincere words by an accused, and with it the pretrial agreement, makes this portion of the defense case particularly significant. The civilian counsel must prepare his client thoroughly, discussing with him the elements of the crime, possible defenses, and the "actual purposes" served by the judge's inquiries that are really just meant to protect the appellate record. Finally, not to be overlooked, the providency inquiry serves as a great opportunity for the accused to express remorse for his actions.
Another unique aspect of the guilty-plea hearing is the nature of the pretrial agreement. The deal brokered between the trial counsel and defense counsel is memorialized into three separate written documents. First, the parties agree on a written stipulation of fact. Second, the bargained terms are described in "Part I" of the pretrial agreement. Part I lists the crimes, or so-called "specifications," which will be plead to or dismissed. Both agreements are reviewed by the judge to make sure the parties — especially the accused — agree with their contents. The judge does not review the final written agreement after he announces his "adjudged" sentence. This agreement is called the "Part II or the quantum portion" and is a sentence limitation that the commanding general and the accused have previously agreed on. The accused always enjoys the lesser of the two sentences, whether it comes from the judge or general.
The sentencing of an accused is often a mini-trial. Witnesses are called to the stand and examined on matters related to aggravation and mitigation. Hearsay is admissible if the defense requests the court to relax the rules of evidence; otherwise, trial counsel are bound to present a strict sentencing case. As a practical matter, hearsay rules are often relaxed, as defense counsel often offer letters from family members. The accused may make either a sworn or unsworn statement. If he chooses to make an unsworn statement, he cannot be cross-examined on it. However, false assertions of fact may be contradicted by evidence proffered by the trial counsel. Sworn statements by the accused will result in cross examination and, therefore, are rarely undertaken.
Nothing is more important than maintaining credibility before the fact finder. Before military judges and juries, this can be a significant challenge for a white-collared attorney. Often civilian layers assume they must be whimsical in demeanor to overcome their fish-out-of-water insecurities. In reality, civilian lawyers are often shown great deference by military personnel. As opposed to military counsel, they are assumed to know the law. The best advice is to treat the case like any other and not deviate from proven courtroom demeanor. In other words, do not try to act a military part, and most importantly, never apologize for not being military.
The keys to credibility also rest with understanding some of the formalities of the military practice area. The detailed military defense counsel is the civilian conduit to credibility. The following areas can easily be mastered with his assistance, often in a few hours. Discuss the rank structure and where your client fits in the unit. Become familiar with common military acronyms. Look at charts that list the various service ribbons and detail their meaning. Duty performance is likewise critical. Familiarize yourself with Officer Evaluation Reports (OERs), Non-commissioned Officer Evaluation Reports (NCOERs), and counseling forms from junior enlisted soldiers. Be mindful that soldiers accused of even the most heinous crimes may be acquitted on good duty performance alone; the military judge even has an instruction about it.
Post-trial Clemency and Appeals
Soldiers convicted of crimes have two final avenues of relief: requests for clemency to the commanding general under RCM 1105, and the appellate process. The clemency requests are not encumbered by military rules of evidence; therefore, written matters can be submitted, which usually take the form of letters from family and friends that request the court-martial conviction be thrown out by the general, or its punishment somehow lessened.
If the clemency route fails, the soldier must wait, sometimes years, for the appellate court. Stare decisis is followed in all military courts, which mostly rely on their own precedents as well as case law from the U.S. Supreme Court. Procedurally, courts-martial that result in a punitive discharge are automatically reviewed by the Army Court of Criminal Appeals (ACCA). Likewise, if a soldier serves more than one year in jail, his case is also reviewed for legal sufficiency by his service's appellate court. In cases of guilty pleas, the accused waives all nonjurisdictional defects, whether raised in trial or not. Thus, in order to preserve specific evidentiary issues, the accused must enter a "conditional" plea. This special plea can only be entered into with the approval of the trial counsel and must be discussed in Part I of the pretrial agreement.
At the appellate level, JAG attorneys on both sides of the aisle are detailed to brief and argue cases. There are no civilian attorneys working at the Government or Defense Appellate Divisions in Washington, D.C., However, civilian attorneys may appear before ACCA or at the next appellate level, the U.S. Court of Appeals for the Armed Forces (CAAF).
The military's criminal justice system is often perceived for its idiosyncrasies alone. In reality, despite certain peculiarities in the system, it often offers more protections to the accused than the civilian system. Civilian attorneys blessed with years of experience and versed in some military formality would no doubt flourish in cases involving those like Col. Nathan R. Jessep's.
Stephen H. Carpenter is an assistant attorney general in Washington. He was a reserve Army JAG lawyer from 1998 to 1999 and served on active duty in Germany and the Balkans between 1999 and 2004.
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