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Background Briefing - Uniform Code of Military Justice and Court Martial Procedures

Presenter: A Senior Military Lawyer
May 19, 2004 1:05 PM EDT
Background Briefing - Uniform Code of Military Justice and Court Martial Procedures

            STAFF:  Well, we meet again.  Thanks for being here this afternoon.  I thought that this might be helpful as you are preparing stories that have to do with the UCMJ.  And I know that many of you actually attended a briefing last week or the week before that had to do with some of the UCMJ procedures.  But in light of, you know, current news, and the fact that you're going to have to work on this, there may be some questions that you weren't able to get answered or didn't think of the last time we had a briefing on the UCMJ.

 

            Also, there's been a significant amount of interest in the topic of command influence and what it is and what the boundaries of it are. And we've been getting a lot of questions on that from you, and so we thought it might be helpful to bring down a senior military lawyer, which is the way in which you can attribute this today.  He's here to   talk to you about process, the UCMJ processes and command influence, and other things about military law.  He will not address any aspect of the current case.  He has no relationship or responsibilities to anything that's going on in Iraq, so even if he wanted to, I'm afraid he wouldn't be able to for you today.

 

            So with that, he's going to step through a couple of things and then take your questions.  And if you really don't have much to talk about, we won't spend much time here.  But we kind of wanted to give you the opportunity to flush out those questions.

 

            Q     Before he speaks and the microphones come on, because of the recent events at our paper, I am under obligation to at least get his name in case I am asked --

 

            STAFF:  Yes, and we'll provide that to you.  It's on his name tag, as you can see.  We'll give it you, but I don't have a sheet here.

 

            Q     And just procedure, I mean why, if this is somebody that's not discussing the case in particular, why is it on background instead of being somebody telling us here, that's who I am?

 

            STAFF:  Sure.  And we've had these discussions before.  This is a process type -- process-oriented briefing, okay?  And it's designed to provide information to better educate you for the work that you have to do with respect to your stories.  We will continue to do these if they're helpful to you, but we will continue to do process-type briefings on background.  If you don't find that helpful, that input would be valuable to me because we really don't need to do these if you don't find them useful.

 

            Q     No, they're very helpful.  But, I mean, it just -- it strengthens it sometimes if you can put the person's name.

 

            Q     Hey, why we've got you, just briefly before we get started, Warner said today you all had another disc of photographs.  Is that true?  And are you all going to provide it to the committee?  What's the context?

 

            STAFF:  Yeah.  No, I -- I --

 

            Q     Can you -- (off mike) -- and give us some context about --

 

            STAFF:  Actually, I just heard that there were some questions about that, and I've made a couple calls, but I haven't gotten anything back yet, so I'll have to get back to you on that.

 

            Q     Okay.

 

            STAFF:  Okay?

 

            With that -- please have a seat, and we'll get started.

 

            SR. MILITARY LAWYER:  Oh, thank you.  You have to bear with me. I'm an old trial lawyer, and I like to stand up and pace around.  So I have to -- (laughter) -- when someone says, "Sit down," I say, Oh, good, I can sit down.

 

            What I thought I might want to do is kind of go through the general -- excuse me, the court martial process to give you kind of the outline of what the court martial process is.  And, in fact, there are three types of courts martials in the -- under the UCMJ.  The first one -- and I'll start with the least severe and work our way up to the general court martial, which has unlimited jurisdiction.

 

            The summary court martial.  Maximum punishment is 30 days. Officers don't go to summary court martials, because, one, they can't be confined in a summary court martial.  It's generally considered for minor disciplinary-type procedures, minor military-type offenses:  UA, unauthorized absence, for example, smart-mouth at your commander, et cetera.

 

            Then you have what we -- may have heard of is the special court martial.  Now, the special court martial can take just about any offense, including very serious offenses, but the jurisdiction of a special court martial is limited to one year's confinement.  No matter what the offense the individual may be convicted of at a special court martial, it is one year maximum confinement and a bad conduct discharge.  Officers don't go to special court martials because they cannot be confined at special court martials.

 

            Now, at a special court martial, the procedures, there is a judge, a judge advocate who would preside, a military -- a qualified   military judge would be the presiding officer.  The accused would be represented by a detailed defense counsel -- technical terms, his lawyer.  Now, if the accused, the service person, wants an individual military counsel -- that is, he wants his -- he wants not particularly this particular lawyer, he wants another military lawyer, he could make a request.  For example, Seaman Jones can say, "I want Lieutenant Smith to represent me in this particular case."  And each of the services have rules as to what is -- a person's reasonably available or not.  I mean, if he's reasonably available, that is -- that's the kind of work they do, they do this kind of procedures, et cetera, they are generally made available to represent them.

 

            Q     Does the person have to be a lawyer?

 

            SR. MILITARY LAWYER:  In order to represent somebody at a court martial, the defense has to have a lawyer there.  Now, again, like in the civilian world, it's possible the person could represent himself. I've not seen it.  I just not --

 

            Yes, ma'am.

 

            Q     Was that rule changed over time?  Because I know during -- I happened to do a story a long time ago on Eddie Slovick, who was killed, and his lawyer wasn't a lawyer, he was just a --

 

            SR. MILITARY LAWYER:  Oh, yes.  The -- since -- at least since '83 -- no, back even further.  Oh, yes.  Now you have to be represented by military defense counsel, which could be the detailed counsel -- just our jargon for his main lawyer; or an individual military counsel -- again, our jargon for the selected your own particular lawyer.  And you could end up being represented by both the defense -- the detailed defense counsel and the individual military counsel.  And what I've seen is in the bigger cases, generally there's two defense counsels, sometimes even more.

 

            Now the accused could, if he or she wants, be represented by civilian counsel.  But of course that would be at the accused's expense.  Now if the civilian counsel comes on the case, again, it's up to the accused.  He can retain his military counsel or counsels, if he or she desires, or jettison them, if they so desire.

 

            The prosecution generally is a military judge advocate of some sort. And a special court martial -- again, we're at this middle-level court martial -- the accused can decide whether he or she wants to have the case heard before a judge alone -- the military judge -- or before members.

 

            Now, in members -- that's our word for jurors -- now, members -- there have to be at least three members.  They initially are officers. Officers would be the three members -- minimum three, could be more; I've seen as many as seven to 10 on specials.  If the accused desires, then one-third of that group, whatever the end group would be -- number -- would be enlisted, and they'd be from a unit other than his own.

 

            For example, if you had someone who was on USS Neversail and the court martial was going and he was enlisted and he wanted enlisted membership, then the commander with the base would have to ask another command to nominate some people from which he could then chose from a different command.  Because at the deck-plate level, you want to make sure that the accused is not -- that the -- they don't know anything about the case, to keep it fair.

 

            Q     The same for the officers on the jury?

 

            SR. MILITARY LAWYER:  The officers can come from -- they generally come from that command.  Now what happens when it gets to trial -- the convening authority, the -- well, the commander -- when he or she chooses who's going to be on this membership, they generally choose from the entire population of their command and they pick -- the code says you're supposed to pick the most educated -- not required -- but these are the factors you look at:  education, experience, temperament, yada, yada, yada -- several rules.

 

            Then the commander will choose one or two or the number needed, and then at trial, both the defense and the government -- primarily the defense -- can challenge any of the members.  Challenge them for cause.  For example, suppose one of the members knows something about the case.  I challenge for cause.  Or represents during this   questioning -- voir dire questioning, if you will -- says something that -- well, he's got or she's got some sort of bias for the government or against the government or for the accused or against the accused or knows something about the witnesses -- they could be challenged for cause.

 

            And then when all the challenges are done and there's unlimited number, each side then gets one peremptory challenge, like "I don't like you.  Sorry, I don't like your tie.  Sorry, that's the way it goes."  (Chuckles.)  They can do that.

 

            Q     And you're not bringing new people in, you're just removing --

 

            SR. MILITARY LAWYER:  Well, you're removing -- until you reach that magical three in a special --

 

            Q     Okay.

 

            SR. MILITARY LAWYER:  Once it drops below three, then the commander is going to have to nominate or assign additional officers or enlisted, as the case may be, to sit on that trial.  And then they go through the voir dire process all over again with the judge and the defense counsel there.

 

            So -- and then -- that's the special court-martial.  Then it -- at the -- yes, sir?

 

            Q     Sorry.  I was going to ask:  Is a special court-martial to try to come to some kind of conclusion on a case fairly quickly?  The reason I ask is, you say the maximum penalty is one year confinement, right?

 

            SR. MILITARY LAWYER:  Yes, sir.

 

            Q     And yet you say this can cover serious offenses, which I would assume that in other instances the penalty might be more than a year for that offense.  Is this something -- is this special court- martial something that's convened in order to do something rapidly, in which case the defendant would agree to do this in order to only face one year, at the most, for something that otherwise might be more than a year?

 

            The reason I ask is because the court-martial in Iraq today -- one year was all he could have gotten.  It was one year.

 

            Now I don't know.  Perhaps the offenses he was charged with could have otherwise gotten him more than one year.  And I was just wondering why the special court-martial -- why it's just one year confinement.  Is this to agree to something more quickly, or what?

 

            SR. MILITARY LAWYER:  It -- that is a part of it, but it's not THE reason.  A special court-martial -- the commander who refers   something to a special court-martial can look at the -- somewhat how rapid it goes.

 

            But to be quite honest with you, a special court-martial can take as long as a general court-martial.  I have seen specials go for a long period of time, once the defense counsel and prosecutors are involved.  So that is an aspect, yes, but it's not the only thing.

 

            What tends to happen at the specials is you tend to see cases that are not -- while serious, perhaps, they're not as serious.  For example, could you -- would you send a murder case to a special? Well, no.  Would you send someone who smacked his first sergeant upside the head with his fist?  Perhaps.  I mean, that falls within it.

 

            Now suppose that same first sergeant case was hit upside the head with a ball-peen hammer.  Oh, that looks like a general court-martial. So it tends to be serious offenses, but less serious.

 

            Q     So are there procedural differences between the special and the general?  Which I realize you haven't told us about.  In some other -- why not send a lesser offense to a general court-martial and just have them come up with a lighter sentence -- (inaudible)?

 

            SR. MILITARY LAWYER:  There are differences, and some of it is speed and -- but -- and I'll jump right into the generals, then.

 

            Q     The point --

 

            SR. MILITARY LAWYER:  Yes, sir?

 

            Q     The point being a general court-martial might involve more legal maneuvering, and in order to get these cases, perhaps, out before the public quickly in Iraq, that -- I'm not asking you to comment on it --

 

            SR. MILITARY LAWYER:  Yes, sir.

 

            Q     -- but perhaps that's why they had -- or was that a special court-martial, as opposed to a general court-martial?

 

            Q     It was a special.

 

            Q     The one today was a special, but the others are going to all be generals.

 

            Q     Right.

 

            Q     Special court-martial.

 

            SR. MILITARY LAWYER:  Again, I don't know anything about the specifics.  Just --

 

            Q     Well, in terms of legal maneuvering, I mean, you're going to be -- if you're going to a special, the stakes aren't as high.  So I assume that you don't feel the necessity for the legal maneuvering to ensure that you're only going to get a one-year sentence.

 

            SR. MILITARY LAWYER:  The stakes are not higher.  But having had defense counsel work for me, if anyone said that they, at a special, didn't fight, you know, tooth and nail, I'd ring 'em upside the head. But you're right in one sense.  It does tend to go faster.  But again, not necessarily.  It tends to be because of the offenses.

 

            Now, sometimes it can be part of a pre-trial agreement worked out.

 

            Q    Plea-bargain type thing; I'll do a summary -- or a special, and you give me more information.

 

            SR. MILITARY LAWYER:  Yes.  Now, the accused doesn't have a -- if the commander sends it to a special, it goes to a special.  I mean, he doesn't have the right to refuse, unlike the summary court-martial, which is the smallest, which he can refuse.

 

            Q     So the defense counsel can't request a special.

 

            SR. MILITARY LAWYER:  He can request, but it's not required that the commander is going to say yes or no.

 

            Now at a general court-martial -- perhaps if I get into that, then you can see how it kind of fits in together.  At a special court- martial, the commander says, okay, perhaps these are more serious offenses.  The case is referred first to an Article 32 investigation. This is a precursor to the general court-martial.  The Article 32 has   been equated to the grand jury, if you will, in the civilian system, but different.  Different in the sense, yes, it's there to see if there's a prima facie case to go forward, to see if the charges are in the correct order, form, style, witnesses availability, that sort of thing, somewhat like a a grand jury, a difference being ours are more -- are open.  A grand jury, particularly in the federal system, is a closed proceeding.  The prosecutor comes forward, gives his case, and the defense very, very rarely has a chance to say or do anything.  And don't tell the feds I said that, but that's my -- (laughs).

 

            But in the Article 32 --

 

            Q     You ARE the feds.

 

            SR. MILITARY LAWYER:  Different type feds.  (Laughs.)

 

            In the Article 32, again, there's an investigating officer assigned to hear the case, not a judge.  It can be, but is not a judicial per se.  You have defense counsel, all the lawyers, his lawyers, her lawyers there, and the prosecutor.  And the prosecutor's job at that point is to present evidence to see if there's a prima facie -- there's reasonable cause to go forward with this case.  It's open.  (The feds ?) often use it as -- it helps as a discovery tool, to find out what the witnesses are going to say, try to lock in witnesses -- say, for example, an assault case.  "Well, Seaman Jones hit me upside the head."  Okay, you can get that down so next time if he says Seaman Jones didn't hit him upside the head, you have it.  So that's part of it.

 

            Then after the 32 is done, a report is done, it goes to the commander.   And if the commander agrees that there's a prima facie case and that the case's seriousness warrants it, it could go back to a special, but if she/she decides to send it to a general court- martial, then it goes to the general court-martial and is referred to a general.

 

            Now at a general, all of the procedural rules that I talked about -- defense counsel, rules of evidence, discovery -- all that that applied at the special apply it at general.  So sometimes, as you can see, that's why a special can last as long as a general, because all the rules apply.  The differences being the punishment levels are -- clearly can be different.

 

            In a general court-martial, whatever the statute says the punishment is, that is the maximum punishment.  For example, robbery -- and I'm probably going to get yelled at because I don't remember the exact -- it's either 10 years or 20, and you'd think I'd know that by now, having done hundreds or robbery cases.  But it's -- say it's 10 years at a general, the maximum punishment.   At a special, it's still six -- still a year.  So at the general court-martial, the punishment potential goes up.

 

            At a general, you have a minimum of five officers who are the jury/members in our case.  Has to be five except in a death case, which if it's referred capital has to be 12 or at least 12; it could be more.

 

            Q     That means that the guy could be put to death if he's found guilty?

 

            SR. MILITARY LAWYER:  Could be, but at a -- right.  That's what --

 

            Q     (Off mike) -- convicted.

 

            SR. MILITARY LAWYER:  Right.  No, that's right.  And we have, much like what the states and the feds do, a criteria as to what is a capital case and what is not a capital case, et cetera.  But --

 

            Q     How many officers in a death case?

 

            SR. MILITARY LAWYER:  There have to be 12 members, minimum 12. It could be more.  The way the law reads now, at a minimum of 12.  So if a commander had one of those cases, he/she would be advised to send a panel of 15 to 20 because some -- a lot of people are going to get bumped off for one reason or another.

 

            Q     Does it also require unanimous --

 

            SR. MILITARY LAWYER:  Yes, it does.

 

            Q     Okay.

 

            SR. MILITARY LAWYER:  Yes, it does.

 

            So if it goes to the general court-martial, there has to be, let's say non-capital case, a minimum of five officers; although I should say five members because again, like the special, if the accused requests, one-third would have to be enlisted from a unit other than the accused's unit.

 

            So at the -- at the trial, the trial takes place just like -- and in fact, I heard someone say yesterday that if it weren't for the uniforms, you would assume it was a federal court.  And I think that's a fair analogy because the rules apply.  Slightly -- differences around the edges a little bit, but still the basic same thing with one exception when it comes to the sentencing phase.

 

            Suppose the individual is found guilty at a special or a general. If a person is found guilty, we move into automatically a sentencing portion of the trial.  There is not much like what you see in the feds where there's reports and they go away for 30, 40, 50, 60 days.  In our procedure, we move right into the sentencing phase of the trial. Now there may be some small continuances, but for the most part you move right into it.  And it's an adversary proceeding; that is, just like at the trial level, government puts on what they consider the bad stuff to make it -- you know, for punishment, and the defense then puts on all the mitigating/extenuating factors.  And there are certain rules as to what -- the defense can make unsworn statements, for example.  The accused can stand up and say "dah, dah, dah, dah, dah," and the government cannot cross-examine that person. The government can rebut it.  But that's just part of the trial evolution.

 

            Q     How is that different from civilian court?

 

            SR. MILITARY LAWYER:  It tends to be, yes, because the system- wide -- I used to be in the federal process, and there, once the trial is completed, the finding of guilty, there tends to be a probation report done by the probation office, there tends to be reports, you know, and then they come back for sentencing and they produce information and stuff, but not right there after the trial.

 

            So our attorneys, our defense counsel and government counsel, have to be prepared to move right into the sentencing phase of the trial, should the person be found guilty of something.  So it's -- in one voice you're saying, for example, as an old defense counsel, "Not guilty, not guilty, not guilty" -- well then, "Maybe a little bit guilty, and let's try not to punish him quite so much," you know, if you're making that argument, you move right into the sentencing phase.

 

            When the trial is all done -- and I apologize if I'm going on a little bit, but I'm trying to give you some background.  After the trial is done, the record of trial, it's all typed up and made real pretty, and it's sent to the convening authority, that is the commander that sent it to trial.  His/her job would be to review the record of trial and to take clemency action, if appropriate, and/or -- well, take clemency action and prove the findings.  He/she can say, you know, "I don't like what they did.  The jury found him guilty -- the members found him guilty of this; I don't think he was guilty of it" and find him not guilty of it.  He has that authority.

 

            What you often see is that that's where as our courts have said, that the best place for clemency, the best -- I can't think of the right terminology right now -- but what's where the defense counsel goes to the convening authority and say, "Please" -- whatever the punishment was -- "reduce it, you know, make it less."  Has that authority.

 

            Q     Is that a JAG or the commander that has that authority?

 

            SR. MILITARY LAWYER:  The commander.  Now, he/she is represented at the general court-martial level for sure.  And at the special there  were JAGs advising, making recommendations.  In fact, the JAG at a general court-martial, after it's over has to write up a document of some sort and say, "Commander, here's what took place at trial" -- very succinct, by the way; it's not a full-blown hey, let's tell you what -- very succinct . "Yep, it looked good/was not good.  I recommend X -- clemency or not clemency."  And then --

 

            Q     Who makes that recommendation?

 

            SR. MILITARY LAWYER:  The Staff Judge Advocate.  That's the JAG for the commander.

 

            Q     But, I mean, but he would have been prosecuting, would he not?

 

            SR. MILITARY LAWYER:  No, he would not.

 

            Q     Okay.

 

            SR. MILITARY LAWYER:  No.  No.  The prosecutors -- the services differ slightly as to who prosecutes.  The system I'm most familiar with is we have -- when a commander has a trial, he sends a letter, memo, message, whatever, to the Trial Division, who's a separate command, and say, "I need a lawyer."  And he sends a note to the Defense Command, "I need defense counsel," they then --

 

            Q     Okay.  So this SJA is like an -- more of a legal advisor --

 

            SR. MILITARY LAWYER:  Yes, sir.  Yes, sir.

 

            Yes.

 

            Q     Can the commander turn a "not guilty" into a "guilty"?

 

            SR. MILITARY LAWYER:  No, he cannot.

 

            Q     He just can do it the other way.

 

            SR. MILITARY LAWYER:  He can go -- I was just saying, you can go down the ladder, but you can't go up.

 

            Now, if the -- either the special or the general resulted in confinement for more than a year, or a BCD, or a bad conduct discharge, or the general, a dishonorable discharge, whether or not the accused pled guilty of not pled guilty, or whether he was found guilty by the members of the court, whatever, it goes to our appellate service courts.  Each service has an appellate service court.  Each -- and they are comprised of a minimum of, for each case, at least three judge advocates.  All services are set up slightly different.  But there's at least three senior judge advocates.  Generally in the Navy it's commanders; for most part it's O-6s -- captains like myself.  In fact, I was one at one point in time.  And the case goes to the service court.  And the service court has to review the case for any legal error that's raised by the appellate defense counsel, and the accused has a right to appellate defense counsel supplied by the military.  Each side -- each service has their own appellate divisions -- they call them differently, but it's the same thing -- appellate divisions who then represent the accused and say, "Dear service court, this is wrong.  Please fix this."  Or, you know, "Reduce the sentence," or whatever.

 

            A slight twist is that our service courts have an advantage over normal appellate courts.  Appellate courts generally look at law issues in the civilian world.  They look, was the law upheld, was the law right.  Our service courts have a broader capacity.  They can -- oh, yes, they have to look at the -- was the law done, was case precedent followed and law followed, et cetera.  But they can also say -- they look at a case from the standpoint of beyond a reasonable doubt.  They have to be convinced that the accused was guilty beyond a reasonable doubt.

 

            Q     They can reconsider evidence?

 

            SR. MILITARY LAWYER:  They can take the record of trial and say, you know, "Based upon this, no," and find him not guilty.

 

            Q     But you can't add new evidence on.

 

            SR. MILITARY LAWYER:  Generally, no.  No.  They don't add evidence.  But they can look at the regular trial and say -- and that's their authority.  It's -- Congress in their -- in the true wisdom, that was a good authority, because that means that the senior level folks can look at it and say, "No, I don't think so," and just for -- because they weren't convinced beyond a reasonable doubt, which is unique function in our service courts.     If the court -- the case is affirmed by the service court, then it can get to the court of appeals for the armed forces.

 

            Now the court of appeals for the armed forces is five attorneys appointed by the president, approved by the Senate for 15-year terms, for all the services.  We all go to the same court of appeals for armed forces.  They look at it as a traditional appellate court with arguments, et cetera, and they make the decision as to whether the case was done right, wrong or whatever.

 

            And one of the things our service courts -- lose me, and I apologize for that -- they can also reduce sentence.  Not only do they find someone not guilty that the court found guilty, they can also reduce the sentence.  For example, if the trial court -- 10 years and the convening authority dropped it to eight, as an example, and then the service court looks at it and says, "You know, that's still inappropriately severe for these offenses."  The service court can drop that offense, drop it down to whatever they think is appropriate.

 

            Q     (Off mike) -- back up?

 

            SR. MILITARY LAWYER:  No, they cannot go back up.  Again, going down the ladder?

 

            Q     How long does the review take?  Is there a time limit -- the appellate service court's review?

 

            SR. MILITARY LAWYER:  There is no set time frame and it varies depending upon the complexity of the trial.  As you might suspect, the shorter trials move through the system faster, the guilty plea cases. Again, if I were to say what the other services are, they'd be mad at me, and I say what I said, I'd be -- it sometimes takes six months, a year.  I don't -- it just depends on the nature of the case.  Some cases move relatively quickly, others don't move relatively quickly.

 

            Q     Are their findings published anywhere?

 

            SR. MILITARY LAWYER:  The court of appeals for the armed forces has a website where all of their cases are published.  The service courts have two types of decisions that they render, all of which are discoverable if you want to take a look at them.  The published decisions which come out of the bound volumes -- like, you know, you see on the shelves in the lawyer's office -- and they also have unpublished decisions, which are available on the website.  And I wish   -- if I knew the site, I'd give it to you, but I don't remember it right now.

 

            Q     (Off mike) -- check on Sivits.  I mean, it's -- you know -- (inaudible) -- today?

 

            SR. MILITARY LAWYER:  On a particular case -- again, it goes to the service court.  It's going to be -- whatever -- I'm not talking about this case because I don't know what it's going to -- and it goes to the system, and it will be up six months, year, I don't know.

 

            Q     Is that an automatic review?    

 

            SR. MILITARY LAWYER:  Automatic.  If the punishment is a certain level.  For example, if it goes to a special court martial and they get 30 days confinement, there's no automatic appeal.  Now it can be appealed to the JAGs of the particular service, but there's no automatic right to counsel and appeal to the service courts.  But there are --

 

            Q     And what level triggers the automatic appeal?

 

            SR. MILITARY LAWYER:  The bad conduct discharge and confinement for a year or more.   Any one of those two, it's automatic, even if the guy walked in there and said, "Hey, I did it all, give me my deal."

 

            A question back there, and I -- you mentioned about pretrial agreements, and we, like the civilian world, have pretrial agreements. They are 99 times out of 100 initiated by the defense, and as you might suspect the way it works is the defense says we will plead guilty to this litany of offenses, perhaps.  Say maybe there's 10 offenses.  They will say, well, we'll plead guilty to five.  In exchange, if we plead this, you will drop these other offenses, command, and whatever the judge gives, the panel gives you will agree that my punishment will be only this level.

 

            For example, I go to a court-martial.  I'm court-martialed and I have a pretrial agreement.  I'm convicted at the court for -- and I get a 10-year sentence.  My deal says that when this case goes to the convening authority, he/she has to reduce it to five years or suspend or whatever.  Now in that deal, that is binding upon the government and the defense -- well, you want to do it on the defense because that's what they want -- but it can't go any higher.  I mean, that's it.  And the only way the government can get out of that is if the accused does some bad things interveningly; you know, does some bad things in --

 

            Yes, sir.

 

            Q     Is the punishment -- does someone start serving -- if someone, general court-martial or special, they get a year confinement but it automatically goes to the service appellate court, do they begin serving their sentence immediately, or is that on hold pending --

 

            SR. MILITARY LAWYER:  No, they start their -- again, much like our sentencing phase, unless there is a deferment -- and they can have a deferment for not a long period of time -- we're not talking like years; we're talking weeks/days -- you start serving the sentence right then.

 

            Q     So the guy goes to the prison, the brig, and then meanwhile it goes through the appellate?

 

            SR. MILITARY LAWYER:  And then it goes through the process.  Now during the process, of course, the accused can be asking for, you know, remittance, clemency, mercy, a variety of different procedures to get there.  But yes, we tend to go -- once the hammer drops, you go somewhere.

 

            In the pretrial agreement, I -- oh, and you can have other provisions.  A question was asked, well, can you have a deal to have your case referred to a special instead of a general?  That can be part of a deal.  The defense can make an offer: I tell you what, I'll plead to this if you will not send my case to a general court-martial where the punishment maximums are higher, but send it back to a -- refer it to a special court-martial, where the sentence is a maximum.

 

            For example, that's how sometimes you can get a more serious offense into a special because the -- they've worked out a deal.  Hey, I know if I go over here, my potential of pain goes up.  (Chuckles.) But if I'm over here, then I know what the maximum level is.  So that is part of a deal.  You can also have --

 

            Yes, sir.

 

            Q      But that in itself, as I was saying before, tends to speed up the process because someone who might feel they might get more for a certain crime would agree to a special court-martial --

 

            SR. MILITARY LAWYER:  Yes, sir, but again --

 

            Q     That could speed the process.

 

            SR. MILITARY LAWYER:  Could speed the process, yes.  But again, it's the command who makes the decision.  I mean, for example, having represented several accused, they would -- "Oh, take us to a special. Take us to a special."  And the command said, "I think we'll go to a general."

 

            Q     Is that the command influence, then?

 

            SR. MILITARY LAWYER:  Command influence -- no.  That's different. The pre-trial agreements there are not command influence or unlawful command influence.  And I'm glad you mentioned that one, because that's a big issue.  Always is.

 

            No, it is not.  It -- that's a part of the negotiating process.

 

            Now the command -- unlawful command influence is a situation where the commander -- and given the nature of our animals, we have to be very careful about that, and -- because you have -- the commander, is in loco, if you will, the magistrate.  He, she is the one who sends them to courts-martial, who -- he, she are the ones that makes decisions -- again, reviewable by the military judges -- as to what witnesses are being pulled from all over the world.

 

            So any time a senior commander makes any kind of statements, that kind of infers, directs, suggests, indicates to the members, to the court itself, a particular sentence, that particular case could find itself being lost, because you kind of have to have an environment where the -- each -- the commander has a free decision-making process, where the members have free decision-making processes.

 

            Because of the nature of our animals, if a senior, like myself, were to tell a junior, "You know, I really think this would be a good case to go to this kind of court-martial, or this kind of thing," then that junior -- whether that junior does it or not, there is that implication that "Mm, maybe that's what the senior wants."  So the senior's got to be very careful and not exercising that issue.

 

            For example, there was a case several years ago -- this is the 3rd Army Division -- we all like to use it, because it's an Army case of many years ago -- where a commander made certain comments to the public about -- there were some sort of robberies or something that had gone on the base.  And so he made -- "Oh, this is very bad conduct, and these people should be punished and should go to jail." And the cases of robbery referred to trial -- and those were, because   he was the commander of the case and the people worked for him, the members worked for him, all those cases were reversed, because it was unlawful command influence.

 

            Q     Those cases were reversed?  In other words, they had reached a conclusion of "guilty" and they were reversed?

 

            SR. MILITARY LAWYER:  They were reversed at the appellate level. Yes, sir.  I don't remember whether it was at a service court or the -- no, it was the -- our Court of Appeals for the Armed forces -- different name years back.  But they reversed them at that level.

 

            So -- yes, sir?

 

            Q     Did the commander make these statements about the specific people, that -- you know, he said, "This private" -- or did he just say in general, "Whoever did this should be punished"?

 

            SR. MILITARY LAWYER:  He was more specific about the events, narrowed it down.  And he was the commander, as I recall.

 

            So that's why we will see commanders being very discreet as far as not wishing to stick their hands or infer that they're sticking their hands into the case, because of the command structure.  And, for example, if I were to say to a -- one of my seamen, you know, "I think it'd be a good idea if you do this," well, that could well be interpreted as an order.  So you have to be very meticulous in trying to avoid that scenario.  Now, in any particular cases, whether the issue was raised or not, that's the duty of the zealous defense counsel to raise the issues, to push it to the -- to whatever limits can be applied.

 

            Q     What about general condemnations?  I mean, that's -- the command influence --

 

            SR. MILITARY LAWYER:  Each case has to be looked at specifically. I mean, you have to -- you have to look at them, and whether it is or does -- does or doesn't depends upon all variety of factors:  what was said, who said it.

 

            For example, years ago, we had a zero -- well, still do -- the Navy, zero tolerance for drugs.  Well, that was looked at repeatedly as to is that command influence?  Ultimately, no.  But we get -- and you have to look at that in those cases and get on the defense counsel, because they raise those issues.  And -- so my counsels will raise those issues.  Good for them.  (Light laughter.)  I'm sorry.  I digressed into parochialism.  I kind of rambled.  And I do that.

 

            Yes, ma'am.

 

            Q     If someone's found guilty on a multiple count in a general court martial, can the sentences be served concurrently, or does it have to be consecutive?

 

            SR. MILITARY LAWYER:  What happens -- in any instance they're all concurrently, because, for example, if you had three specs of robbery -- five years, five years and five years -- the maximum is 15. Sentenced for -- and we don't break it out.  It'll say "Sentenced for six years," for example.  We won't break it out and say, "Oh, you got five years for this, five years for this," it's all put together into one offense.  Now, on appeal, should one of those offenses be rejected or reversed, the court, the appellate court, if it can, will -- and they can do that with certain standards that we have -- say, "Well, we know that had that offense not been there, this would have been no more than this," they'll reassess.  And if they can't, they send it back for a resentencing hearing, which --

 

            Q     In that case, then, just to follow up, and if there's seven years or six years in the -- you know, the example you gave, would it  have to be less years, obviously, if one of those is thrown out?  They can't give him six years again?

 

            SR. MILITARY LAWYER:  No, it's going down.

 

            Q     It's got to go down, somehow -- some form or fashion.

 

            SR. MILITARY LAWYER:  Yeah.  And so, as a good appellate defense counsel, you're always looking to get a specification, no matter how small, thrown out, because you know, something's coming down.  It ain't going up.  And so, as an appellate judge, all -- you see a lot of issues -- and I digress here.  Man, this is thin -- thin, thin. But, you never know, you know.  Something in -- it'll come down.  And after someone's already done -- sentences are not over, the military's not going to bring him back to try to prosecute generally.  They might.  One offense, and they got a litany of others that's already been done, so it's coming down.  Again, I tend to ramble.

 

            Q     Is there anything -- well, first, is there -- are there minimum sentences required?

 

            SR. MILITARY LAWYER:  No.

 

            Q     No.

 

            SR. MILITARY LAWYER:  No.

 

            Q     And is there -- I forgot.  Go ahead.

 

            Q     I have a question --

 

            SR. MILITARY LAWYER:  Yes.

 

            Q     -- on the general philosophy of the UCMJ.  There's been some talk lately -- and I don't know enough about it, but taking some crimes, I think like sexual crimes against non-service members by service members out of UCMJ.  There are some people that are sort of agitating for that.

 

            Could you explain why there is a separate legal system for crimes that are unrelated to military duty?  If you're a military guy and you do a crime off base against a person, why wouldn't they just go into the regular --

 

            SR. MILITARY LAWYER:  Well, there are several reasons.  One is we're worldwide.  Unlike the civilian world -- take your example -- our code applies across the world.  Obviously, we're all over the world.  So you want to have one standard rule so if X takes place out here, it's not going to be treated differently in the main than somewhere over here.

 

            Also, it's part of our disciplinary process.  If our folks do bad things, then philosophically, as part of the disciplinary procedure and the criminal procedure, we want to be able to take appropriate action against those offenses.  If someone does an assault and assaults someone, I would like it to have that we take care of our own and make sure that those bad guys -- oh, I shouldn't say it that way -- the accused, the alleged accused, are handled appropriately.  And so philosophically is we are worldwide.  And you also kind of run into the prospects of if you do it locally, I would be a little concerned that you were kind of at the discretion of whatever local prosecutor you may be dealing with, and they vary.  There's no -- I'm not impugning anything, but they vary across the world, across the country, as to who is more aggressive about certain types of offenses as compared to other types of offenses.

 

            I think that's --

 

            Q     Okay.  And I have another question.  Would you ever -- is there a war crime statute that you would ever prosecute someone for? I think one of the interesting things going on with this -- all the Iraq cases is that they're sort of very specific crimes that are laid out in UCMJ and then the rest of the world are looking and -- "These are war crimes."  Is there some kind of war crimes statute that you can --

 

            SR. MILITARY LAWYER:  Again, what the Iraq -- they can do what they want -- that's not something I'm involved with.

 

            We have -- there's federal law we can use, under the Uniform Code of Military Justice, under one of our codes, assimilated crimes, we can impute into our code crimes that we may not have spelled out in the UCMJ.

 

            For example, if -- well, assimilate a crime.  If there's a crime that the feds have, or even somewhat the states have that fits whatever, we can follow it under Article 134 of our code and say it's assimilated into the code.  Then, of course, we have to meet all the element requirements, et cetera, for whatever that offense was in that state or fed.  But we can pull that in.  So to the extent that there are war crimes that's federal law, yes.

 

            Q     But that would only involve U.S. federal or state code, and not international codes or Japanese or whatever, or would it?

 

            SR. MILITARY LAWYER:  You will -- most codes that cover those sorts of things are covered by the U.S. code in some way, shape or form.  So --

 

            Q     And there's not any cases where U.S. servicemen would be subject to a foreign authority?

 

            Q     There can be.  Korea.

 

            SR. MILITARY LAWYER:  There can be.  There can be, where some could be subject -- yes.  In fact, hearken back to Japan, where they've had several convictions of people that have done -- our soldiers and sailors.  The question I was answering was not that they can't, but that we want our -- we need our system.  Now if a person goes out in CivLant world, he walks off the base --

 

            Q     (Off mike.)

 

            SR. MILITARY LAWYER:  Oh, I'm sorry.  Civilian world.  I'm sorry. (Laughter.)  I regret it.  (Laughter.)  Civilian world.  CivLant world.  Civilian Atlantic.  I'm sorry.  (Laughter.)  My wife gets a big kick out of that when I say that, too, and I apologize.

 

            But when you go outside the gates, so to speak, into the -- into Virginia, say from the base here, our base, and goes off and commits an offense off base, can the civilians prosecute?  Absolutely they can prosecute one of our sailors.  Could we?  Well, we could also.  Now, we -- as comity, if it's a civilian offense, they have it.  They get the priority.

 

            Now -- but there have been occasions where we have prosecuted cases, and one comes to mind of case in Florida area where a service member kidnapped his son, the son ended up being murdered, and it was unclear -- and was it Georgia, Florida -- where the murder actually took place.  And so we, the military, took jurisdiction over that particular case because for us it didn't matter whether it took place in Georgia, Florida or even Alabama.  I think it was just -- maybe it wasn't Alabama -- at least those two states.  So we took cognizance over that particular case and it was prosecuted.  So we're not bound by the state borders as to who has jurisdiction, who doesn't have jurisdiction.

 

            Q     How do you decide when to -- say the Marines that are in Korea, or there have been some cases where they get handed over to local authorities.

 

            SR. MILITARY LAWYER:  Overseas there's a status of forces agreement that tends to say under what conditions they will turn over or we will take or vice versa.  So that's how those kinds of cases are worked out.  In some cases, the civilian -- civilians overseas say no, we will keep those.  And Japan, for some of the cases that we're all familiar with, kept those.

 

            Yes, ma'am.

 

            Q     Another question.  If someone receives a nonjudicial punishment, my understanding is the only way they can face a court- martial proceeding then is if there are new charges or new allegations that didn't come up earlier.  Is that correct?

 

            SR. MILITARY LAWYER:  No, I'm afraid not.  What could happen -- if a person goes to a nonjudicial punishment, a senior can say wait a minute, that punishment for this nonjudicial punishment was not appropriately -- it was too severe, or it was -- let's take a robbery at an NJP, or nonjudicial punishment.  We call them NJPs, or captain's mast.  If that was inappropriate, the senior commander could say, "Look, I am now going to refer the case to trial."  However, at trial, that individual would have to get full credit for any kind of a punishment that he or she may have received at a nonjudicial punishment.  It can be done.  It doesn't happen very often, but it can be done that the commander will do that on some kinds of cases, depending on what the case is.

 

            Q     Is there like a double-jeopardy thing for nonjudicial punishments, so folks that -- for instance, in Iraq -- (chuckles) -- have already received nonjudicial punishments, can they get something more, or is that case closed.

 

            SR. MILITARY LAWYER:  Again, I'm not talking about them.  But in general --

 

            Q     As an example, a Middle Eastern -- (inaudible) --

 

            SR. MILITARY LAWYER:  -- a nonjudicial punishment is not judicial.

 

            Q     (Off mike.)

 

            Q     (Off mike.)  (Laughter.)

 

            SR. MILITARY LAWYER:   It may sound kind of trite, but nonjudicial means it's not judicial punishment.  And so they weren't convicted of anything.

 

            Q     Right.

 

            SR. MILITARY LAWYER:  So ergo they can --

 

            Q     (Off mike.)

 

            SR. MILITARY LAWYER:  They could.  And it's not piling on.  But they could do it if the seniors decide that offense -- the commander, for example, the local commander, was too light -- I mean, not too light -- it was not the right thing to do.  You don't take robbery to an Article 15/NJP/mast.  You just don't do it.  Has it happened? Well, sometimes maybe it has.  But when it does and the commander does go through the court-martial process, he has to be given full credit for that.

 

            And there's recent -- the Court of Appeals for the Armed Forces recently made additional -- one of the courts, about what those rules are.  You've got to be very meticulous to make sure you give him dollar for dollar, day for day, stripe for stripe.  I think that's what the terminology says.

 

            Yes, sir?

 

            Q     What are the requirements for a person to be subject to the UCMJ system?  And I ask that in the context of private contractors acting in theater.

 

            SR. MILITARY LAWYER:  I'm a member of the United States military. I am subject to the code anywhere I go.  So the UCMJ, while if you read the code, there are a couple of places possible now the courts have said if there are civilian -- in order to get UCMJ jurisdiction over you, you, me, one of us, raised your hand and said "I hereby swear."

 

            Q     So you have to be wearing a uniform.

 

            SR. MILITARY LAWYER:  You have to be a part of the United -- you don't have to wear a, per se, uniform.  You have to be part of the military, official part.

 

            Q     Do you know anything about that year 2000 act, that military justice thing that Congress passed?

 

            SR. MILITARY LAWYER:  Military Extraterritorial Jurisdiction Act.

 

            Q     That's the one!  Yeah, tell us about that.

 

            SR. MILITARY LAWYER:  It doesn't apply to the military.  I mean, that's a way for (involving ?) civilians.  It's kind of outside the scope of what I should be talking about right now.  I don't want to get into that because that's --

 

            Q     Would you say again what it is so I can look at it? Military --

 

            SR. MILITARY LAWYER:  The Military Extraterritorial Jurisdiction Act.  And don't ask me to spell it, because I really couldn't.

 

            STAFF:  Okay.  Then let's bring this to a close.

 

            Q     Thank you.

 

            Q     Thank you.

 

            STAFF: I know you all are expert now on this.

 

            Q     Appreciate your time.

 

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