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Barksdale News Briefs
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'Military justice' is not an oxymoron
By Lt. Col. Steve Dubriske
2nd Bomb Wing Staff Judge Advocate
BARKSDALE AIR FORCE BASE, La., Oct. 21, 2010 —
The military justice system has been subjected to attack over the years by a variety of political and legal scholars who believe the system is unfair and arcane. These attacks are normally launched after the national press sensationalizes a court-martial case. The court-martials surrounding the abuse at the Abu Ghraib prison or the alleged killing of Iraqi civilians by U.S. Marines are just a few cases that have caused various pundits -- many of whom have never served in the military -- to call for sweeping reforms to the Uniform Code of Military Justice.
As someone who has practiced in the military justice system as both a prosecutor and defense counsel, I share a different view regarding the fairness of our system. While all judiciary systems have inherent flaws, I think most of us at Barksdale would agree the criminal justice system in the United States is second to none in the world. It is my belief the military justice system meets, and in many ways, exceeds the protections afforded by the civilian judicial systems these same political and legal pundits hold out as the benchmark for the military justice system to emulate.
As I know most people will not believe anything that comes out of a lawyer's mouth without some corroborating evidence, I want to take this opportunity to provide you with just a few examples of where the military justice system compares favorably with our civilian judicial system. I believe these examples show the inherent fairness in our system that is oftentimes ignored by uninformed critics.
One excellent example of the fairness in our system surrounds a servicemember's right to legal counsel. Under federal and state judicial systems, individuals accused of crimes are only entitled to free legal representation if they prove they are unable to afford an attorney. In contrast, all servicemembers suspected of criminal activity have a right to free advice and representation by an area defense counsel without regard to their financial well-being. In most cases, the ADC has been selected for the position because he or she has shown superior litigation skills while serving as a prosecutor. This selection of the best trial practitioners for defense positions ensures servicemembers are provided with exceptional legal representation at no personal cost.
Members of the military are also provided greater constitutional rights against self-incrimination. Suspects in civilian systems do not have to be advised of their right to remain silent until they are subjected to questioning while in police custody. This self-incrimination right is commonly referred to as a "Miranda" warning. In the military justice system, however, Article 31 of the UCMJ provides that all military members must be read their rights at any time they are merely suspected of criminal activity. The location of the questioning is immaterial. Moreover, Article 31 requirements apply even when law enforcement personnel are not involved in the questioning of a suspect. This is why commanders, first sergeants, and supervisors are required to read rights to servicemembers they are questioning about criminal activity.
The military justice system also provides a servicemember with greater rights during the pretrial review processes. In most civilian systems, a grand jury is used to determine whether the prosecution has sufficient evidence to take a felony case to trial. These proceedings are not open to the public, the accused, or his defense counsel. The prosecutor alone controls the evidence heard by the grand jury. The Article 32 hearing is the military equivalent to the grand jury, but it is open to the public in almost all cases. The accused and his counsel can attend the hearing to discover the nature of the prosecution's case. More importantly, the accused can challenge the prosecution's case by cross-examining witnesses and submitting evidence, including testimony from the accused. This challenge by the accused and his defense counsel will sometimes lead to the dismissal of charges or an alternative disposition such as nonjudicial punishment.
Finally, a servicemember convicted at a court-martial is automatically provided with some level of appellate review. Appellate review can range from an administrative review of the conviction to a full-blown appeal to the Air Force Court of Criminal Appeals depending on the severity of the sentence received by the accused. An automatic appellate review of all types of criminal cases is generally not found within civilian systems. Additionally, while a case is being reviewed on appeal in the military justice system, the accused is entitled to free legal representation from defense attorneys who specialize in criminal appeals. Similar to the right to counsel at the trial level, a person convicted of a crime in the civilian system must show a financial need before they are provided free legal representation at the appellate level.
It is my hope these few examples will dispel some of the misinformation you may have read about our system in the past. While the military justice system is not by any means perfect, I challenge anyone to identify a judicial system that provides those accused of crimes with greater protections than that provided by the UCMJ. If you feel you are up to the challenge, just remember I argue for a living.