Making a Case for and Against Military Justice

Aberdeen rape case shows difficulties of ensuring fair trial for the accused

When Staff Sgt. Delmar Simpson stands trial for rape in a US Army court martial in February, he will be advised by an Army lawyer and face an Army prosecutor, an Army judge, and an Army jury.

In the civilian world, such an arrangement would present impermissible conflicts of interest. In the Army, it is called military justice.

Because he is an active service member of the US armed forces accused of a serious crime, Sergeant Simpson and two other soldiers at the Aberdeen Proving Ground in Maryland must surrender many of the rights they would enjoy had they been accused while civilians.

Instead the soldiers, who appeared at pretrial hearings this week, will have their fates determined by a system designed more to dispense swift justice under battlefield conditions than to comply with the finer points of constitutional protections.

A primary purpose of military justice is to give commanders a means to maintain order and discipline among men and women who may risk their lives in dangerous missions. Without the ability to quickly punish offenders, command might deteriorate into chaos.

Legal experts say that, for the most part, the nation's military justice system is in good working order. But some say it is in need of fine-tuning by Congress. They note that Congress last held major hearings examining the state of military justice back in the early 1980s.

The fact that all the major players in a military trial ultimately report to the same chain of command doesn't disqualify the proceeding as a legitimate forum for justice, legal experts say. But it requires a high state of vigilance to ensure that commanders do not exert any improper influence on the outcome.

A banking analogy

A comparable situation in the civilian world would be if a bank teller accused of embezzlement was both prosecuted and defended by vice presidents of the same bank, while a senior vice president sat as judge, and the case was decided by a jury comprising bank managers and employees.

What if the president of the bank gave a speech prior to the trial calling for tough punishment for embezzlers? Would low-ranking bank employees on the jury feel pressure from senior managers on the jury to vote to convict?

Experts in military justice say the same issue will arise in the military trials at the Aberdeen Proving Ground.

On Tuesday, lawyers for the accused soldiers asked a military judge to order Army commanders to refrain from making any comment on the case. The lawyers complain that pretrial statements by Army Secretary Togo West and senior commanders have already hurt their clients' ability to receive a fair trial. The motion was denied.

But some legal observers say a broader question remains: Did the statements hurt the defendants?

"From the moment I saw the secretary of the Army taking the podium with the secretary of defense, I had grave concerns about whether these guys could get a fair trial," says Charles Gittins, a defense lawyer in Alexandria, Va., who specializes in courts martial but is not involved in the Maryland case.

"Soldiers, they test the wind to see how the C.O. [commanding officer] is going to go on a certain issue," he says. "You don't go against the C.O.'s wishes."

For many military personnel, it is a concern that goes beyond just disagreeing with a superior officer.

"People who sit on juries in the military owe their next job and evaluation to the commander," says Kevin Barry, a former military judge, a practicing lawyer, and director of the National Institute of Military Justice in Washington.

"I think the [lawyers] are on the right track by their request [for a gag order], but the damage may have already been done," says Michael Powell, a long-time defense attorney in military cases.

Mr. Powell, who has offices in Alexandria, Va., says defense attorneys can attempt to counter so-called command influence by carefully questioning prospective jurors about potential biases or fears. And they can ask the judge to instruct the jurors to ignore any outside influences that might cause them to reach a verdict based on anything other than their own evaluations of the evidence and testimony presented during the trial.

"Can you get a fair jury?" Powell asks. "The only people who know are on the jury."

Jury selection for a court martial differs substantially from the process for jury selection in civilian courts. First, prospective jurors in a court martial are picked by the base commander rather than a random selection based on voter rolls. Second, the composition of the jury includes both officers and enlisted personnel, and always includes a majority of officers.

Foreman and boss

In a civilian court, the jury foreman is elected by fellow jurors, while in a court martial the job of foreman goes to the juror with the highest rank.

Defense attorneys say it is not unusual in an Army court martial for officers and subordinates from the same units to serve on the same jury panel. Legal experts say this raises the specter of an additional potential conflict of interest, where a subordinate may be concerned that unless his verdict matches that of his immediate superior his career may suffer.

"The jury system in the military is a good system, but you have to be very vigilant that nobody messes with it," says Powell. "You can't go into it naive."

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