Proposed Randomization of Court-Martial Juries

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Q: Can the military be trusted to hold fair trials?

Court-martial reform made the news recently when a lawmaker, who happens to be a retired Army Lieutenant Colonel, took issue with another lawmaker’s proposed amendment to the National Defense Authorization Act. If enacted, the amendment would have randomized court-martial juries by “removing some control by commanding officers and military judges to pick jurors”.

The lawmaker, who had previously “sat on courts-martial and two war crimes tribunals” took offense to the amendment’s implication that “the militant military cannot be trusted to hold fair trials”. In defense of her proposed randomized jury amendment, the sponsoring lawmaker expressed the need for service members to be assured a jury and trial “not unduly influenced by military authorities who picked each member.”

The amendment was defeated.

The military justice system and the civilian justice system are different in many ways. An experienced court-martial defense attorney who is a civilian military defense attorney is a service member’s best chance for a favorable outcome. Accepting the free but often inexperienced and overworked court-appointed attorney from the trial defense service could be doing yourself a disservice. It’s not uncommon for inexperienced military defense attorneys to be pitted against teams of experienced top-level prosecuting attorneys.

General courts-martial are reserved for the most serious crimes and upon conviction, sentences can be as serious as death. Generally, the accused can choose to be tried by military judge alone or a panel consisting of a military judge and at least five members. In addition, an enlisted accused may request a panel consisting of at least one-third enlisted membership.

There is a multi-level court-martial appeals process that can go as high as the United States Supreme Court in certain rare instances. In the earlier, lower levels of the court-martial appeal process, military judges review the appeals. It is not until a service member loses an appeal in the Court of Criminal Appeals that he or she can appeal to the Court of Appeals for Armed Forces (“CAAF”) – – a court composed of five civilian judges appointed by the president. However, the CAAF does not have to hear a case appealed to it unless the sentence is death or the judge advocate general (“TJAG”) requests review. Appealing to the U.S. Supreme Court is the court of last review, but it too can refuse to hear the appeal.

Under the military justice system’s current system, service members don’t have civilian judicial review until the CAAF appellate level. Based on the defeat of the proposed amendment to randomize jury selection and remove some control from commanding officers and military judges to pick jurors for courts-martial, it’s apparent that accused military service members would benefit from civilian attorneys with military criminal defense experience to defend them at trial or upon appeal. They need someone independent and from outside the military’s ranks—with experience gleaned from being on the inside—who has the time, resources and determination to clear their name.

If you are, or believe you might be, facing a military court-martial, the military law experts at Elkus, Sisson and Rosenstein will aggressively defend you. Call us at 719-247-3111 for a free consultation.

From our offices in Colorado Springs and Denver, we represent service members of all ranks and in all branches– anywhere in the world.

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