Lonetree appeal will challenge fairness of US military courts. Civilian lawyers familiar with the military justice system cite strengths but see aspects that could have adversely affected Sergeant Lonetree's case.

When United States Marine Sgt. Clayton Lonetree received a sentence of 30 years for espionage, his lawyers indicted the military justice system. Lead defense counsel William Kunstler, who had lauded the system for its speedy-trial provisions and the openness of the evidence-gathering process, charged after the verdict that his client had suffered from the ``self-protective myopia of the Marine Corps.''

Sergeant Lonetree was found guilty Aug. 21 of espionage and 12 related charges. He was sentenced to 30 years in prison, with the possibility of parole in 10 years. His lawyers say they plan to file an appeal next week seeking to have the verdict set aside. Points they are expected to raise include:

Testimony by an expert witness who was identified only as ``John Doe.'' Press and public were excluded from hearing the witness and the transcript of his testimony was not released. The defense lawyers did not know the real name of the witness, and they were not permitted to ask questions about the individual's background.

That prosecutors ``falsely and emotionally'' portrayed Lonetree as the first US marine ever convicted of spying. The Marine Corps has confirmed that between 1982 and 1984 three marines had pled guilty of ``espionage-related'' charges and been given sentences of no more than two years. An offer by Lonetree's lawyers of a guilty plea in return for a two-year sentence was rejected in pretrial negotiations.

That Lonetree was interrogated before being advised of his legal rights.

That the military judge barred the calling of witnesses important to the defendant's case.

The Lonetree case could go as far as the US Supreme Court. But appeals will first proceed through a military justice hierachy that is both criticized and praised by attorneys who have argued cases before its courts.

One such critic is Washington attorney Eugene Fidell, who has represented many military clients in his 19 years of practice. Mr. Fidell says: ``Anyone who tells you everything is hunky-dory in the military justice system is pulling your leg.''

Judge barred evidence

Fidell and others familiar with the military justice system point out that its judges are subject to the ``chain of command'' and do not have definite terms of office.

Fidell says that in the Lonetree trial military Judge Philip F. Roberts ``prevented the defense from putting on the full circumstances of [Lonetree's] confession.'' The judge, a Navy captain, barred from the trial a Naval Investigative Service (NIS) admission that special agent Thomas E. Brannon threatened Lonetree, at one point instructing him to ``tell us a lie, tell us anything.'' Fidell says that ``at the very least, that should have gone to the jury.''

Georgetown University law Prof. Paul Rothstein, who has instructed military judges and lawyers for the last seven years, calls the military justice system ``one of the fairest in the world,'' adding that it has more stringent rules of procedure than civilian courts.

While Professor Rothstein acknowledges that there is a ``military perspective'' on disclosure of secrets that is ``going to color things,'' he says the system ``goes to extra pains'' to protect constitutional rights.

Court acts as `superjury'

Lonetree is entitled to free legal counsel throughout the appeals process - starting at trial, then proceeding to the Court of Military Review, and ultimately to the Court of Military Appeals, which is a civilian panel appointed by the president.

Fidell describes the Court of Military Review as a ``superjury'' that has to be convinced of ``guilt beyond a reasonable doubt,'' not simply a review to determine the reasonableness of the lower court. This court has the power to affirm, reverse, or reduce a sentence.

But the military court system's apparent equity sometimes breaks down in practice, he says. In all his years of practice, Fidell says, he has ``never heard'' of a John Doe witness such as the one who testified in the Lonetree trial.

And defense lawyer Kunstler says that permitting a John Doe witness has never happened in the ``history of the Anglo-American system.'' He adds that the unidentified witness's testimony corroborated information in the Lonetree confession essential to the prosecution obtaining a conviction.

Rothstein calls the John Doe witness the ``weak point'' in the prosecution's case. ``In a civilian court, this never would have happened,'' he commented. ``The defense has to have the opportunity to investigate if the witness has motives to lie. All kinds of things you need to find out, that without his name, you can't find out otherwise.''

System concerned with fairness

Nevertheless, Rothstein says that when the Lonetree case is ``ironed out'' in the appeals process, it will turn out to have been ``fairer than the civilian system.''

Stephen Milliken is a Washington, D.C. attorney who has represented clients at court-martial and argued a military First Amendment-free speech case before the US Supreme Court. He says he believes the military justice system is more concerned with fairness because it is ``sensitive'' to the outside perception of military justice as a ``kangaroo court'' process. But he, too, acknowledges a ``command influence'' that ``remains a very real problem, making abilility to speak out against abuses severely constrained.''

The Marine spy story broke last December after Lonetree told an intelligence agent (presumed to be a member of the Central Intelligence Agency) last December that he had been involved with Soviet agents in both Moscow and Vienna. He signed a confession on Dec. 29, 1986.

Early allegations of Marines conducting Soviet agents through the secret rooms of US embassies, which could have been grounds for charges involving possible capital sentences, were never substantiated.

Some knowledgeable observers say NIS agents, military attorneys, and possibly CIA personnel, botched the cases against several suspects by using flawed interrogation techniques and attempting to fabricate evidence. Lonetree is the only individual brought to trial at this point.

Cases against two dropped

Four other marines who served as US embassy guards in the Soviet Union were charged with various offenses. The case against Cpl. Arnold Bracy was dropped for lack of evidence; Cpl. Robert J. Williams, who recanted a statement implicating Bracy, is awaiting a determination as to whether he should be court-martialed for perjury; Sgt. Robert S. Stufflebean is awaiting court-martial for failure to report contacts with Soviet women, and Sgt. John J. Weirick, who purportedly confessed to giving Soviet agents free run of the US embassy in Leningrad, was released in May, his case having overrun the time limit set by the statute of limitations.

A spokesman for the NIS, who requested anonymity, said the allegations of improper interrogation are ``simply not true.''

Attorney James R. Klimaski, a former US Army officer with the bulk of his legal practice in military law, says ``sloppy'' prosecution and investigation are routine in the military. He says a high school notebook of Lonetree's, with swastikas and communist drawings, which was allowed into evidence in the Marine sergeant's trial was an example of the military prosecution's common usage of ``everything but the kitchen sink to create an atmosphere'' to get a conviction rather than ``building a case on the hard facts.''

Mr. Klimaski calls the admission of the notebook into evidence ``erroneous and fundamentally unfair.''

Klimaski says he believes jury selection in the military is slanted. He equates the process to a ``president picking the jury referred by the attorney general.''

``I've seen situations where the same names keep popping up,'' he says. ``They call them `hammers' because they're known to be hard sentencers.''

System called more accurate

F. Lee Bailey of Boston, a defense attorney of national renown, says he was trained as a Marine Corps attorney and has tried military cases throughout his ``33 years of practice.'' He terms the system more ``accurate'' than the civilian trial process.

``The use of superjurors [in the appeals process] is beneficial,'' says Mr. Bailey, and the two-thirds rule requiring that two-thirds of the jury vote for a verdict ``is better'' than the civilian system.

With the military system, ``in a jury of five, all you need is two and you've got an acquittal. Also, the defense lawyer has broad power to get rid of jurors'' the defense doesn't want, he says.

Bailey, who successfully defended Army Capt. Earnest Medina against charges of complicity in the infamous My Lai massacre in Vietnam, says that if he were accused and ``innocent, that's where I'd like to be'' - in a military court. ``But if I were guilty? I'd like an American [civilian] court to play with.''

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