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Background Briefing on Court-Martial of U.S. Soldiers

Presenter: U. S. Military Attorney
May 10, 2004
Background Briefing on Court-Martial of U.S. Soldiers

U.S. MILITARY ATTORNEY:  (In progress) -- the jury to make sure that they are not biased in any way, that they have been influenced, that they are already deciding or making certain decisions before they hear the evidence in court.  Then the counsel would do the opening statements on both sides, evidence would be presented, and then closing arguments.

Yes, sir.

Q     You were saying --

U.S. MILITARY ATTORNEY:  I think you need to use a mike, sir.

Q     Sorry.  I came in late because I was waiting over at the other side with a few others, so I may ask a question that's been covered before.  Just apropos what you're saying, in a judge-alone trial you were talking about jury vetting.  But if it's a judge alone, why would the jury be questioning?

U.S. MILITARY ATTORNEY:  Well -- I'm sorry.  With a judge alone there would be no jury.  The accused gets to decide.  He decides  whether he's going to be tried by judge alone, by a jury of all officers, or a jury with enlisted members.  If he goes judge alone, the counsel have the right to actually question the judge to make sure that the judge is fair and impartial as well, and doesn't have a predisposition to how this case is going to be decided.  So you're right, I confused that on that issue.  Excuse me.

Q     Can you repeat that?

U.S. MILITARY ATTORNEY:  If it's a judge alone -- if the accused decides that he wants his guilt or innocence and his sentence to be determined by a judge, then he makes that determination and the only thing we have in the court is a one-person judge who makes the decisions.

Yes, ma'am.

Q     Could I just clarify?  Could it be -- did you mean that the jury could be a mix of officers and enlisted men, or do you choose one or the other?

U.S. MILITARY ATTORNEY:  He would choose -- the accused would choose one or the other.  He would choose either an all-officer panel or he would -- if he's an enlisted member, he could choose to have enlisted representation.

Q     Is it all of one or mixed?

Q     Is it just enlisted?

U.S. MILITARY ATTORNEY:  It would be mixed.

Q     Well, then, is it not just one of three that can be enlisted?  Or is it --

Q     I think it's a minimum of one of three.

Q     A minimum of one in three.

U.S. MILITARY ATTORNEY:  Minimum of one-third.

Q     Minimum?

U.S. MILITARY ATTORNEY:  Minimum of one-third.

Q     Minimum one-third officer or enlisted?

U.S. MILITARY ATTORNEY:  If the accused wants enlisted representation on his panel, there has to be a minimum of one-third. So if we sit a panel of nine, then it would have to be -- three members would have to be enlisted.  If it's a panel of eight, it would still have to be three members.  One-third is the requirement.

Yes.

Q     If the accused selects --

U.S. MILITARY ATTORNEY:  I'm sorry?

Q     I'm sorry about that.  If the accused selects a panel, who -- is there still a military judge who will be deciding, for example, on procedural motions, motions for change of venue, and other such matters?

U.S. MILITARY ATTORNEY:  Absolutely.  Regardless of whether he decides on a panel or a judge to decide the guilt or innocence, there will be a judge.  That judge is in control of the courtroom.  So he decides on any motions.  He decides on how the procedures go.

You have a follow-up?

Q     Yeah, if I could ask a quick follow-up.  And thanks for that answer.  Will both the military judge and the prosecutors be supplied by the Staff Judge Advocate's Office in this theater, i.e., CJTF-7?  And if so, what will be the selection process, and how many prosecutors will be appointed?  Thank you.

U.S. MILITARY ATTORNEY:  The prosecutors are actually out of CJTF-7, and they're from our office.  The military judge, in the system that we have in the Army, we actually have officers who are appointed to be judges, and they're appointed by Department of the Army, the Office of the Judge Advocate General.  They are separate and apart.  The judge for this one will be coming from Germany.  We do not have military judges in Iraq on a permanent basis.

Q     Has the judge been selected yet?

U.S. MILITARY ATTORNEY:  I do not know which judge that will be. There are several there in Germany.

Yes, sir?

Q     Three quick ones.  What about an artist in the courtroom?

U.S. MILITARY ATTORNEY:  I believe that has been mentioned.  I do not know what the final response on that is.  But we will get to you --

STAFF (?):  Yes.

Q     Okay.  If I could, please, can we get the charge sheet for this?

U.S. MILITARY ATTORNEY:  I do not know when the charge sheets will be released.

Q     Does anybody know?

U.S. MILITARY ATTORNEY:  We may be able to get that answer to you by tomorrow, but I don't know when they will be released.

Q     And finally, how long is this going to take?

U.S. MILITARY ATTORNEY:  This first court-martial?

Q     Yeah.

U.S. MILITARY ATTORNEY:  I would say one to two days, but I do not know.

Q     A decision at the end of that process, at the end of the second day?

U.S. MILITARY ATTORNEY:  When we say a court-martial, the one to two days, you will have the guilt or innocence of the accused be determined; and if he has been found guilty, you will actually have the sentencing portion as well.  So when I say one to two days -- and again, that's just an estimate; I don't know for sure.  But at the end of that period, end of this trial, he will have been found innocent or guilty, and if guilty, he will be sentenced.

Sir?

Q     How does the trial itself -- the court-martial itself differ from a civilian trial, a civilian criminal trial?

U.S. MILITARY ATTORNEY:  A lot of the procedures in the actual courtroom are very similar.  Like I said, you'll have opening statements by each counsel, you'll have the presentation of evidence, the closing arguments.  One thing that's fairly different in the military system is there's no lag before we go to sentencing.  So if someone is found guilty, then we're prepared to go right to sentencing after that.  But in the courtroom itself, as far as the counsel are concerned, there's not a lot of difference between (advocacy ?) in the civilian world and (advocacy ?) in the military justice system.

Q     A lot of times in civilian cases you have very long lists of, you know, witnesses, and testimony can be very long, sort of counter -- you know, witnesses that take the other side.  I mean, these are the same?

U.S. MILITARY ATTORNEY:  You would have the opportunity -- I mean, I've been in court-martials that lasted -- well, involved in one that lasted 11 days.  From the military perspective, that's a very long court-martial.  We're generally a lot more streamlined than the civilian system. But the defense has every opportunity to call witnesses in his behalf.

MORE

Q     Yes, is it like in other trials, civilian trials, that you have a plea of guilt or non-guilt before it starts?  Can there be -- the lawyer of the defendants, can he be a civilian?  And can the civilian witnesses be heard?

U.S. MILITARY ATTORNEY:  There will be a plea prior to the trial, during the arraignment.  In some cases the arraignment can happen before the actual trial.  Because we have a visiting judge, someone coming from Germany, we will do it all in one period of time.  So yes, the accused will enter pleas, much like a civilian system, in the beginning of the court martial.

I believe your second question is, can he have a civilian defense counsel?

Absolutely.  That is one of their rights.  They can hire civilian counsel at their own expense.  In most cases they are still afforded a military defense counsel as well, if they want.  And civilian witnesses, they can request civilian witnesses.  We'd have to look at, obviously, the procedures of bringing him into theater, but if it's found to be a necessary witness then they will be brought to theater.

Q     Just a follow-up.  How is it with the confidentiality of evidence material gathered by the military in such a trial?  Can the civilian lawyer have insight into what may be deemed confidential?

U.S. MILITARY ATTORNEY:  Those attorneys would have to go through the procedures of getting clearance in order to view that material. But there is a procedure in place.  We've had it -- we've had civilian counsel involved in a lot of high profile cases and they're able to get the credentials in order to see the classified materials.

Ma'am?

Q     Do we know yet if he's decided on either a civilian or --

STAFF:  No specific questions about him, please.  That's --

Q     Oh, sorry.  I came in late.  Okay.

U.S. MILITARY ATTORNEY:  Yes, sir?

Q     Is there a military version of a plea bargain?  And you may have said this before, but does he have to be convicted of all charges to be found guilty?

U.S. MILITARY ATTORNEY:  There is a military version of a plea bargain.  It really depends on the case.  In some situations you could find an accused who would say I can plead guilty to these offenses, but not to these.  In that case, the government can say, okay, well we're not even going to try to prove these, because if you're willing to plead guilty to these, we're good.  Or the government can say, you can plead guilty to these and we're going to prove up the rest.  So it really depends on the situation.  So they could plead guilty to some and not others.

Q     But also on the charge -- (off mike) -- does he have to be convicted of all the charges or just some of them to face penalty?

U.S. MILITARY ATTORNEY:  One charge.  If he is convicted of one charge, then they would look at going to the sentencing on that one charge.

Sir.

Q     Do you have any information on the coming courts-martial, whether they'll be held here in Iraq?  And if so, when?  And if they'll be similar direction, one/two days, or if they'll be longer ones?

STAFF:  This is a backgrounder.  The ground rule is we don't talk any specifics about the upcoming court-martials.  She's only giving you a background layout of military court-martials.  So it's not appropriate to ask her that question.

Q     Oh.

U.S. MILITARY ATTORNEY:  Yes.

Q     Is there a military equivalent to a discovery process for collection of statements that could potentially be exculpatory, for example, or to -- (audio break from source) -- that might be entered by the prosecution?  And if so, how long does that process typically take?  And then a follow-up question is, what is the procedure for bringing in witnesses who are outside of the theater, such as military officers who have since redeployed and gone back to their home bases? Thanks.

U.S. MILITARY ATTORNEY:  Absolutely there is discovery in the military.  We term our discovery process "open discovery."  We typically give discovery -- if you're on the prosecutor's side, give discovery as soon as possible to the defense counsel.  The defense counsel has every right -- our discovery rules pretty much parallel the federal rules of evidence, so they're entitled to the same amount. Any statement that would be exculpatory, any statement that would aid the defense or his attorney to present a defense in his behalf would actually have to be handed over by the prosecuting attorneys if they have it.  And --

Q     Time frame for doing that?

U.S. MILITARY ATTORNEY:  It depends on the court-martial.  I mean, there's cases where you'll have little or no evidence, so it's very easy to give it over.  Then there's cases where, again, if it's -- you know, depending on what type of case it is, there's a lot more discovery that you would have to go through.  So it really depends.

Q     Thanks.  A few quick ones.

Q     I'm sorry; I had another question -- I'm so sorry, Luke (sp) -- for -- about bringing in witnesses from outside the theater.

U.S. MILITARY ATTORNEY:  Oh, I'm sorry.  Bringing -- there's no problem bringing military members back to country for the court- marital if that is necessary.  As I already indicated, we could even bring civilian back into theater if there is a need to have them and they are requested and the judge determines that their presence is necessary.

Q     First of all, will you have military cameras in the courtroom?

U.S. MILITARY ATTORNEY:  No.

Q     No.

STAFF:  You need to stand at the mike.

Q     Yes.  The other one was, what can we infer from the fact there's no Article 32 hearing in this case in terms of why it went straight to that?  What can you infer?

U.S. MILITARY ATTORNEY:  There was no Article 32 because the accused wasn't entitled to one.  His court-martial level is a special court-martial empowered to a judge of BCD, a bad conduct discharge.  When we go to -- it's a less severe form of the general court-martial.  When we go to the BCD special court-martial, there's no right to an Article 32 because what he's subject to is less, so his due process rights are a little bit less as well.

Q     So we can infer we're sort of beginning with one of the lesser accused?

U.S. MILITARY ATTORNEY:  I cannot comment on that.

Q     But you could have gone to a general court-martial with this guy?

STAFF:  (Off mike.)

Q     Okay.  All right, fine.

STAFF (?):  You're walking a fine line.

Q     Okay.  Could he still face civil -- or could one still face civil charges in this country, or is there a double jeopardy sort of restriction on someone convicted in a court-martial?

U.S. MILITARY ATTORNEY:  They would not be subject to local law.

Q     Could not be?

U.S. MILITARY ATTORNEY:  Correct.

Q     And the other one, the size of the panels, a minimum of three and a maximum of how many?

U.S. MILITARY ATTORNEY:  We would generally start off a panel with nine to 10 members.  So -- then for the special court-martial, there's a minimum of three members.  But we would generally start off at nine or 10, depending on what the sitting panel is.  And then if the counsel had questions about whether someone was impartial, whether they were able to make their own decision without being influenced by (everything that happened ?), then they could request that that particular member be pulled off the panel and not serve.   So when you start off at nine, you could get down.  The problem we would have is if we get down to two, then we would have to look at sitting another panel.

Q     Can I just follow up on that?  What's the jury pool?  I mean, is it everybody who's serving in theater -- or I mean, if you're looking at officers, is it all the officers who are serving in theater?  And ultimately, who decides who gets to go on this jury?

U.S. MILITARY ATTORNEY:  The jury is selected for service by Lieutenant General Metz, the convening authority, as III Corps commander.  Those are officers and enlisted members who are under his command, so III Corps at this point.  They were picked months ago.  I believe we set the panel some time in January, and it would be the panel that we would use for -- we already had one panel case a month ago; that would be the same panel.  Now, if we go to the second court martial, if it's also a jury trial, we would have to get additional panel members, because you wouldn't have one jury who decided the case on one sitting in judgment of a second one as well.

Sir?

Q     Just as a follow-up on that.  Could you just give us the names -- Lieutenant Colonel Metz?  And what was the unit he was involved with?

U.S. MILITARY ATTORNEY:  Lieutenant General Metz.  M-E-T-Z.  He's the general court martial convening authority, as the commander of 3rd Corps.

Q     First name?

U.S. MILITARY ATTORNEY:  Thomas.

Q     So his title again?

Q     Sorry, I have a basic question.  Can you tell me a little bit about this Article 32?

U.S. MILITARY ATTORNEY:  I'm sorry?

Q     Article 32.  Can you -- I apologize, I came in late.  But --

U.S. MILITARY ATTORNEY:  I don't think we hit that yet.  What the Article 32 is, any time we are looking at taking a military member to a general court martial, they are entitled to a -- it's like a pre- trial hearing.  And what we have to show is that we have probable cause that they committed the offenses before we go to the actual court martial.

So with the Article 32, the accused is present, his attorney is present, the prosecuting attorney is present, and then we would assign an officer to be the investigating officer, and that person would hear the evidence that the government had.  If the defense wanted to present anything, hear that as well, and then make a determination and a recommendation to, in this case, General Metz, as to whether there's sufficient evidence to go forward to the actual court martial.

Q     Can you just explain, please, the distinction between a bad-conduct discharge and the more serious dishonorable discharge? What are the implications in terms of pay and pension?

And secondly, could you also explain whether it's -- there are procedures for striking.  I didn't -- you hinted at this earlier.  I may not have understood you about -- can defense counsels strike members of the jury pool, and do they have a limit on the number of strikes?

U.S. MILITARY ATTORNEY:  Your first -- I'm sorry, your first question?

Q     (Off mike.)

U.S. MILITARY ATTORNEY:  Okay, if you get a bad conduct discharge or a dishonorable discharge, both of them are punitive discharges. Both will affect your pensions or any retirement that you might expect.  So if a person was entitled, if they were past their 20 years -- would otherwise get a pension -- if they got either discharge, they would no longer be entitled to any retirement from the military.  Generally where you see the difference between a BCD and the dishonorable discharge, the DD, is the perception of the public.   You know, most people have heard of a dishonorable discharge.  That is generally saved for the more serious offenses -- murder, rape cases. In some cases, you know, I've seen it where there's a direct correlation to the military.  But it's generally reserved for the more serious offenses.  And again, the difference is almost more in perception from the public than in the rights that the person might have taken away.

Ma'am?  Oh, I'm sorry, I keep forgetting.  If you ask these two questions, it's not going to work for me.  The second question was? (Laughs.)

Q     I apologize.  About striking members of the jury panel.

U.S. MILITARY ATTORNEY:  Yes.  Actually, both sides would have the right.  The prosecution would go through the questioning of the panel.  The prosecution would be able to ask questions.  The defense counsel would be able to ask questions.  And the military judge can ask questions as well.

Both sides would be able to have -- I'm trying to rack my brain for it -- challenges for cause.  This person should not sit on this panel because he is biased, because he's already predestined to make -- predisposed to make certain decisions, and he's not going to give the evidence the hearing that it needs to be given.  That would be a challenge for cause.

There's also peremptory challenges, which means I just don't get a good vibe from this person, I don't want him on the panel.  Those are generally limited to one per side.  The judge controls that.  I mean, he could decide, well, in this case we might need to have two. Typically it is only one as far as peremptory challenge for no reason. But for the challenges for cause, they can have as -- if they can show that there is a reason to strike that panel member, they have as many as they need.

Q     You referred to this as a special court-martial.  I wasn't familiar with that term, if you could just explain what that means. And also, you didn't mention whether there's a right of appeal after the verdict has been issued.

U.S. MILITARY ATTORNEY:  It is a special court-martial empowered to adjudge a bad conduct discharge, as opposed to a general court-  martial.  For a special court-martial empowered to adjudge the bad conduct discharge, the biggest differences is, one, the person would not get an Article 32, but also, the outcome is limited.  The person is only subject to 12 months confinement, at maximum.  He can only get a bad conduct discharge versus the dishonorable discharge.  He would still be able to be reduced to the grade of E-1 and forfeit all pay.

Q     What is E-1?

U.S. MILITARY ATTORNEY:  E-1 private.  From the enlisted side all the way down to the very bottom.

Q     Twelve months for each charge or 12 months total?

U.S. MILITARY ATTORNEY:  Twelve months total.  Twelve months total.

Actually, I know you had an -- oh, the right to appeal. Actually, it's more than a right.  Every court-martial that we do goes through the appellate process, so it's not one where the accused has to do anything affirmatively.  From our jurisdiction we would forward that court-martial up to our Appellate Court, up to the Defense Appellate Division and the Government Appellate Division, and their attorneys would take a look at it, decide on the appellate process what issues they may or may not want to raise.   So it's more than a right to appeal, it actually happens regardless of whether they want it.

Q     In such procedures, do cameras ever see the accused walking in, walking out?

U.S. MILITARY ATTORNEY:  I don't know what the set-ups will be here as to whether that would happen.  In our typical courts-martial back home in our courtrooms, if the media was there, I mean, there's only so many limited entryways and exitways, so that is a potential in most court-martials.

Q     Would that -- just to follow up, would that appeal process, if that came to that, would that happen again here in Baghdad or no?

U.S. MILITARY ATTORNEY:  No.  Our appellate system is set up in D.C.  So we have our Government Appellate Division, our Defense Appellate Division, and our Appellate Court is in, actually, Northern Virginia.

Yes, sir?

Q     We were told yesterday forfeiture of two-thirds pay. You're saying forfeiture of all pay is possible?

U.S. MILITARY ATTORNEY:  Two-thirds.  Excuse me.

Q     Okay.  The other thing, on the -- just to clarify on the jury, it can be as small as three, as large as 10?

U.S. MILITARY ATTORNEY:  There's actually no top line.  Typically you're not going to see one more than 10 because what we start off with is what the general has selected.

Q     Just to help us, what are we most likely to see in this particular case?  Because as a discharge -- in a discharge -- in this -- in the type of court-martial it is, what type of panel you're supposed to see?

U.S. MILITARY ATTORNEY:  The best I can say is three to 10.

Q     Three to 10.  And also, the -- does it have to be -- the verdict given by the jury, does it have to be unanimous?

U.S. MILITARY ATTORNEY:  No.  I would have to get the specific percentage that it would have to be.  I believe it's three-quarters, but let me verify that.

Q     (Off mike.)  I'm just raising two really simple questions, one about the procedure whereby he chooses which type of panel, the defendant.  This is very theoretical because we don't know.  When is this likely to take place?  I mean, this -- if the court-martial is one or two days, obviously all of this has been decided beforehand. So I wonder what the procedure is between now and then in the normal course of events.

And a quick follow-up question about the appeal procedure, excuse me.  He won't be present for this?  He's not flown out to Washington to take part in that?

U.S. MILITARY ATTORNEY:  For the -- as far as him being present for the appellate, he would be in touch with the attorney.  His attorney is up in D.C., representing him in that procedure.

And it is getting late.  I've had a long day.  The first question, on the --

Q     Well, just if you could take us through the timeline --

U.S. MILITARY ATTORNEY:  Oh, I'm sorry.  Yes.

Q      -- for the choosing of the panel and, you know, what we can expect to see in the --

U.S. MILITARY ATTORNEY:  I apologize.  Typically there is a requirement because the government obviously has to take steps to make the panel happen; meaning, you know, we have to know in order to notify the panel.  Typically, if I was back in the States and I was a   prosecutor, I would expect the defense to notify me three to five days prior to the court-martial so that I could be prepared to sit the proper panel.

Do we have -- ?

STAFF:  Okay, one reminder.  This is a backgrounder, so if you refer to the (briefer) at all, it's as "the CJTF-7 legal officer" -- all right? -- as "a CJTF" -- I can't talk either at this hour.

Q     (Off mike.)

STAFF:  (The briefer) is going to be available throughout this court-martial, and if we should have any other court-martials, to help, you know, explain procedures and things; once again, not to speak on specifics, but to explain things as things go along.