Here is the latest article on proposed changes to the military justice system, and my comments on the issue.
http://www.mcclatchydc.com/2013/05/16/191456/obama-lawmakers-tackle-military.html#.UZZVbspZ6Hg
I’m the civilian court-martial defense lawyer quoted in the article above. For those of us who care about the fairness
of the military justice system and the rights of the military members accused
within it…
When lawmakers propose that JAGs make
decisions in these cases instead of commanders, that begs the question “What
end game is being sought by the suggested systemic changes?” Do lawmakers really care who makes the
decisions, or are they really just looking for those who will do what they want
– namely, to ensure prosecutions, convictions, harsh sentences and no clemency
in these cases? The message from
lawmakers vocal on this topic is very clear – the military justice system fails
if cases alleging rape or sexual assault are dropped or result in acquittal (UCMJ Article 120). Due process, systemic fairness and the presumption
of innocence are casualties of this message.
In the military justice system there is unrelenting external and internal
pressure to sacrifice fairness, and the rights of military defendants, for a
system governed by public relations pressure.
The focus seems to be increasing prosecution success at the expense of
the constitutional principles and protections on which the military justice system
was founded.
It
is sad and ironic that military members swear an oath to support and defend the
constitution – which for them may mean taking life or sacrificing their own –
but lawmakers want to chip away at the constitutional protections military
members have within their military justice system.
If the lawmakers are proposing these changes
to increase prosecution statistics, because they believe JAGs will push for
prosecutions and convictions more than commanders already do, then, once again,
Congress is attempting to make the system less fair than it already is for
those military members facing these allegations. Changes shouldn’t
be made to the system to ensure military prosecutors do Congress’ bidding
regardless of the merits, or lack thereof, of individual cases. If
the system is put in the hands of the JAGs instead of commanders, what will
happen if this doesn’t result in more "palatable" statistics?
If
the public could see inside the truth of the military justice system they would
be shocked by the disparity between what actually occurs within the system as
opposed to the messages being spread by those within Congress, the press and
others with an agenda. Why is it that few press outlets other than
McClatchy are even covering the issue of the fairness of the military justice
system for military defendants? Why is
it that in White House, Congressional, and DoD meetings and hearings on the
topic, the voice of the defense is not invited and considered? There are scores of stories and examples we
could tell from the perspective of actually being involved in defending these
military cases and court-martial trials that would present a much more balanced debate on this issue. We could bring more perspective on what the
alleged statistics (which are being so heavily relied upon) may actually mean or
not mean. How can a topic fairly be
debated or addressed in the government or the military when all the invited
participants agree on the basic premise that the system is failing, changes are needed, and those changes need to result in increased prosecution statistics?
By: Attorney Richard V. Stevens
Civilian criminal defense lawyer and military defense lawyer
Military Defense Law Offices of Richard V. Stevens, P.C.
Blog postscript: Attorney Frank J. Spinner and I (attorney
Richard V. Stevens) are former active duty military lawyers (JAG). Our
perspectives and advice, therefore, are based upon our experience as military
defense lawyers and as civilian criminal defense lawyers practicing exclusively
in the area of military law and military justice. This blog addresses issues in
military law, military justice, military discipline, military defense, court-martial
practice, the Uniform Code of Military Justice (UCMJ) and other military and/or
legal topics. Nothing posted in this blog should be substituted for legal
advice in any particular case. If you seek legal advice for a particular case,
please contact The Law Offices of Richard V. Stevens and The Law Office of
Frank J. Spinner for a free consultation. These military defense law offices
are located in Colorado Springs, Colorado and Southern New Jersey, but the
military defense representation is worldwide – when necessary, the attorneys
travel to wherever the client is stationed.
