My suggestion would be to lobby Congress to amend the Military Code of Justice, or the states to convene a convention to amend the constitution.

I wouldn’t hold my breath.

Jed: I suspect you may be talking past each other due to differences in the way the services do things. The current practice in the Air Force is along the lines of what wfjag states.

The current practice in the Air Force is along the lines of what wfjag states. A list is compiled of those who are available to sit on the panel. This list is sent to the convening authority, who chooses approx. 6–8 (SPCM) or 12–14 (GCM). These are then detailed as the panel. Every detailed member attends, and if the panel is busted, counsel can’t just call more members because there are no more detailed. In the event of a busted panel, a new list of available members is sent to the CA so he can detail a new panel. There IS a standing list of available members, but there is not a standing list of detailed members.

Hope this helps.

John: “Accordingly, I have to conclude that in your 80 Courts-Martials, either you didn’t run into a D.C. who knew what Art. 29, UCMJ, actually said, or, as D.C., you failed to preserve your client’s rights with the appropriate objection.”You do not have a clue what you are talking about. You never call the entire panel for a jury trial. You call some of the people who are on the list but not all of them. You almost always have other members who are on the list but for whatever reason don’t show up to this particular trial.I was a trial counsel for twoyears.About every six months we went to the convening authority and got a new court marshal convening order which put about 20 or so officers and another 20 or so enlisted as eligible for panel duty. You don’t call all 40 of them.You just call 10 or so and if you bust the panel, you call a few more. That is what the Marine Corps failed to do in this case. Again, you know just enough to be dangerous about this stuff.I am sorry but smugness doesn’t make up for experience and knowledge.

You do not have a clue what you are talking about. You never call the entire panel for a jury trial. You call some of the people who are on the list but not all of them. You almost always have other members who are on the list but for whatever reason don’t show up to this particular trial. I was a trial counsel for two years. About every six months we went to the convening authority and got a new court marshal convening order which put about 20 or so officers and another 20 or so enlisted as eligible for panel duty. You don’t call all 40 of them. You just call 10 or so and if you bust the panel, you call a few more. That is what the Marine Corps failed to do in this case. Again, you know just enough to be dangerous about this stuff.

I am sorry but smugness doesn’t make up for experience and knowledge.

First, I am a former JAG and veteran of around 80 Courts-Martail.(sic)

I can only assume that includes guilty pleas and Summary Court Courts-Martial. As Trial Counsel and Defense Counsel, I’ve tried 80 contested GCMs and SPCMs.

I’m very familiar with busting panels. However, apparently unlike you, I paid attention to the wording of Article 29, UCMJ. I also paid attention to United States v Greene, 20 U.S.C.M.A. 232 (CMA 1970) (which is still good law):

“‘We start by recognizing that an accused has an absolute right to trial before a properly constituted court with members. Accordingly, this accused’s conviction cannot stand if he abandoned his right (and was tried by military judge alone) to avoid trial before an improperly selected panel’”. (citations omitted)

In order for the convening authority to delegate additional members to a General Court-Martial panel, the panel must be “reduced below five members”. Art. 29(b),UCMJ. For a Special Court-Martial, it must be “reduced below three members”. Until that happens, the convening authority has no authority to start adding additional panel members, and your “standing panel” idea causes an improperly convened panel — and, assuming that the Defense Counsel preserved the objection — a reversal. Accordingly, I have to conclude that in your 80 Courts-Martials, either you didn’t run into a D.C. who knew what Art. 29, UCMJ, actually said, or, as D.C., you failed to preserve your client’s rights with the appropriate objection.

For example, IIRC, pre-World War II, there was not a right to have a court-martial in a serious case presided over by a legally trained military judge. The right to appeal to civilian courts at all by any means other than a writ of habeas corpus lodged with the U.S. Supreme Court is even more recent.

I agree with the commentors who have noted that courts-martial panels are not juries, and that there is not right to a trial by jury in the military justice system (and never has been).

I also agree that empirically that courts-martial tend to be rather lenient in their sentencing (which is generally by the panel rather than the judge as in most civilian criminal courts), compared to civillian criminal courts. For example, not a single soldier was sentenced to death for crimes committed in either the Korean or the Vietnam wars, despite the fact that some heinous crimes were committed there.

For example:

“Frag incidents” or “fragging” was soldier slang in Vietnam for the killing of strict, unpopular and aggressive officers and NCO’s (Non-Commissioned Officers, or “non-coms”). . . The Pentagon has now disclosed that fraggings in 1970 (209 killings) have more than doubled those of the previous year (96 killings). Word of the deaths of officers will bring cheers at troop movies or in bivouacs of certain units.” Congressional hearings on fraggings held in 1973 estimated that roughly 3% of officer and non-com deaths in Vietnam between 1961 and 1972 were a result of fraggings. But these figures were only for killings committed with grenades, and didn’t include officer deaths from automatic weapons fire, handguns and knifings. The Army’s Judge Advocate General’s Corps estimated that only 10% of fragging attempts resulted in anyone going to trial.

Similarly, “During the latter part of the Vietnam War, there were at least ten major instances of mutiny.”

Military justice would probably authorize the death penalty in any fragging and for the leader of any major mutiny in a war zone. But, this isn’t what happened.

From a policy perspective, one reason for lower levels of due process in military justice setting is to encourage discipline to be metted out on the merits, rather than passive-aggressively without any due process. A commanding officer who wants to punish a subordinate during wartime (even for discipline issues committed while in the United States) can wait until his unit is deployed in a war zone and then select the subordinate to be punished to serve on the most dangerous, even near suicidal, missions with impunity. In the context of that kind of power, the process has to be one that superiors feel comfortable using in order to work.

John: Oder of the Coif,The other good thing about the military justice system is that since most witnesses are military members they have to talk to the defense.

The other good thing about the military justice system is that since most witnesses are military members they have to talk to the defense. I think most people would be stunned if they knew that witnesses in a civilian criminal trial are under no obligation to talk to defense attornies before trial. Yes, the government has to turn over any statements they made, but the witnesses themselves don’t have to talk to the defense if they don’t want to (and they usually don’t). Civilian trials really are often trials by ambush.

John: If enough of them get struck to put you below the minimum nuber of panel members it is known as “busting the panel”. In that case, you just call a whole new set off of the standing order or if you can’t find enough get the convening authority to appoint some new members and start again.

I’m glad that got clarified, because I was wondering how on earth the military courts–about which I have heard entirely good things from lawyers who have worked in the military and civilian systems–could be so easily manipulable.

I would rather be tried by a court martial panel of intelligent, educated persons who see service on the panel as an important part their job and seek to do it well. A panel which takes its oath seriously and can (and WILL) distinguish between “he did it” and the government has “proven beyond a reasonable doubt” that he did it. A panel whose members are willing to speak up and persuade the others that the defendant is not guilty (more often than you think) or guilty.

Convening authorities are very much aware of the trap of “command influence” and, in my humble experience avoid it like a plague. Besides, where else can the DC read every panel member’s complete personnel record looking for bases to challenge the member.

If I had a choice, I’d take trial by court martial every time.

P. S. There’s seldom/never a Brady problem because the defense gets everything (except the trial counsel’s notes) in the prosecutor’s files. Usually at the same time.

P. P. S. Another UNIQUE way to keep the government honest is the ability of “any person subject to the Code” to file charges. I did it once against a military police detective for altering evidence (my client’s so-called confession). He didn’t know that photocopies had been made before he made the crucial additions and signed it as a witness (in the only blue ink on the document!).

First, I am a former JAG and veteran of around 80 Courts-Martail. In future, be careful who you call out for ignorance. You appear to know just enough about the military justice system to be dangerous. You give a correct description of the process. What you fail to mention is that there is a standing order signed by the convening authority periodicly that randomly assigns a large number of officer’s and enlisted to panel duty. You start with a certain number of panel members. If enough of them get struck to put you below the minimum nuber of panel members it is known as “busting the panel”. In that case, you just call a whole new set off of the standing order or if you can’t find enough get the convening authority to appoint some new members and start again. The Marine Corps was lazy not to do this. As soon as they went below six, they should have called more people off of the standing list. That they didn’t shows that they just didn’t want to go to the bother of rescheduling the trial and bringing in new panel members.

It is okay that you don’t fully understand how the system works. I am happy to tell you how it does. But, you really should refrain from insulting other people when you really don’t understand the process yourself.

IANAL. Let’s assume for the moment that the Wikipedia page for due process has an interested lawyer type among its editors, and that the definition above is about right. Then due process is what the law or process making division says it is. In civilian law this is the legislature, and in the military some other arm. The only role for judge (and a judgement) is to determine whether the process due was met, not whether the judge felt like more jurors would be a good thing by itself.

This is not the end of the inquiry because of separation of powers concerns. Simplfying, courts insist that their proceedings be “fundamentally fair”; if the legislature could provide otherwise, then the courts would cease to operate independently and would potentially become merely the vehicle for abuse of power by the legislature/executive.

Another way to look at it is that the process due “by law” includes the process courts insist on; that’s a form of law.

They don’t have “juries” in Courts-martial. It’s called a panel — because, among other reasons, it isn’t a “jury.” A Court-Martial is an Article I proceeding, not an Article III proceeding.

In that case, the word “Panel” should be added to the headline.

You might want to add the word “Jury” to your headline after “Court-Martial”

They don’t have “juries” in Courts-martial. It’s called a panel — because, among other reasons, it isn’t a “jury.” A Court-Martial is an Article I proceeding, not an Article III proceeding.

There is really no excuse for not providing him with a six person jury. The fact that he wasn’t is a reflection of laziness on the part of the Marine Corps rather than military necessity.

This comment also shows ignorance of the subject matter. Panel members are not a jury pool. The Court-Martial Convening Authority assigns people to the pool by order (usually a standing order). Everyone on the order shows up. Those not struck based on a challenge for cause of a preemptory challenge sits on the panel that hears the case. Smart defense counsel play the numbers game. In a Special Court-Martial, like the one that heard Sergeant Sanford’s case, for conviction, not less than 2/3’s of the panel must vote to convict. It’s probable that there were 6 Marines on the original panel. The Defense Counsel would use a preemptory challenge on one, leaving 5 — so that the government would have to get 4 of 5 (80%) voting for guilty in order to secure a conviction (since 3 or 5 is only 60%, which is less than 2/3s). The government would then challenge one, so that there were 4 members remaining on the panel — so the government would need a vote of 3 of 4 (75%).

Due process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law.

IANAL. Let’s assume for the moment that the Wikipedia page for due process has an interested lawyer type among its editors, and that the definition above is about right. Then due process is what the law or process making division says it is. In civilian law this is the legislature, and in the military some other arm. The only role for judge (and a judgement) is to determine whether the process due was met, not whether the judge felt like more jurors would be a good thing by itself.

SgtDad, I don’t see where the enumerated right to jury trial says anything about the number of jurors.

And if “empirical studies” are the basis for how we try cases, take a look at the science behind hindsight bias. Common law trials are a pathological excercise in the application of hindsight bias. This is due process?

The rationale behind these opinions goes to the quasi-sovereign status that Indian tribes historically have claimed.

I would imagine that the military, with a history of courts martial with fewer than 6 members, would be similarly immune from a grafting of the civilian rules of criminal procedure on the military criminal justice system.

We insist on larger juries in civilian trials because of the reasonable assumption that a larger jury is less likely to commit an injustice. Absent true military necessity, soldiers and marines should get the same benefit. While technicaly this case is probably right, the military ought to as a matter of fairness and policy insist on a six person jury wherever possible.

Cheers,