Courts Martial Info

By Mathew B. Tully
Special to the Times

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

In the wake of recent publicity surrounding the controversial court-martial verdict for Army Staff Sgt. Alberto Martinez at Fort Bragg, N.C., who was acquit­ted of murdering two superiors in Iraq, I’ve received questions from civilians regarding the military court-martial process.

I’ve also received inquiries from my military buddies asking about the process from my perspective as a civilian defense attorney.

It seems that the Martinez court-martial made it clear to those inside and outside the armed forces that the military justice system is quite different from the civilian criminal justice system. But it’s not as simple as the plotline of a “JAG” episode may make it seem on television.

The overwhelming majority of courts-martial are for active-duty military members. Others subject to court-martial include retirees, reservists in certain situations, cadets, midshipmen, prisoners of war, and, during war, people serving with and alongside our troops in the field.

Those subjected to the process are accused of violating a provi­sion of the Uniform Code of Mili­tary Justice, a federal law that sets the foundation of U.S. mili­tary criminal law. A court-martial is most easily described as a mili­tary criminal trial.

The basic structure is similar to criminal trials you may have seen in civilian courts or depicted in the movies, such as in my favorite court-martial movie, “A Few Good Men.” The typical players are all there: judge, jury, prosecutor and defense attorney.

But some of the crimes you may see prosecuted in the military en­vironment aren’t applicable to civilian life, such as desertion, adultery and failure to obey an order. Others, such as murder and sexual assault, fall in line with civilian law.

Before a general court-martial, the case goes to an Article 32 hearing, roughly the equivalent of a grand jury proceeding for civil­ians. Here, an investigating offi­cer reviews the evidence to see if enough is there to proceed with a court-martial. If the case goes for­ward, a military judge is selected from the ranks of the Judge Advo­cate General’s Corps. Those cho­sen generally are veteran court­room advocates with years of trial experience.

Once the case goes to the court­room, a court-martial has two basic phases: the “findings” phase and the sentencing. In the findings phase, government prosecutors present witnesses and other evi­dence in an attempt to prove the defendant is guilty. The defense attorneys then cross-examine the witnesses and make other chal­lenges to the evidence. Once the prosecutors have presented all their evidence, the defense attor­neys present evidence for the de­fendant. Lastly, the government has a chance to rebut the defense’s evidence.

Once all evidence has been pre­sented, the jury meets privately to determine whether the govern­ment has proven the defendant’s guilt. Jurors, called panel mem­bers, generally are a mix of offi­cers and enlisted members. They vote by secret ballot, and unani­mous votes are required only in death penalty cases. In most cases, conviction and sentencing require a two-thirds majority, un­like civilian courts, which gener­ally require a unanimous verdict for everything.

If the defendant is found guilty, the sentencing phase begins. This can begin immediately following the announcement of the verdict, and the entire process occurs at a rapid pace, unlike in the civilian system, where it can drag out.

In the sentencing phase, the gov­ernment lays out its justification for how the victim or military mis­sion was affected by the crime. In turn, the defense attorney argues for a lesser punishment.

The sentence can come from a multitude of places, and it’s up to the defense to determine who will dole out the punishment.

The defendant can choose to have his case heard by a judge or by a jury. It could also be split up, with the judge determining the findings phase and the jury deter­mining the punishment.

Punishments depend on the severity of the crime and may in­clude loss of rank and pay, jail time, or even a discharge. Howev­er, a conviction is not necessarily the end of a case. Similar to civil­ian courts, the military justice system allows appeals.

Article from Navytimes.