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may ask is there really JUSTICE in the military justice system and
in response, I would say without hesitation that yes, there is justice
in this system. I have practiced law in the Courts of the Commonwealth
of Virginia, the Federal Court system and the military judicial
system for 23 years and unquestionably in my mind the military justice
system is far and above the best judicial system that exists. Does
that mean it is a perfect system – of course not. One of the
true tests of a criminal judicial system is its ability to protect
the innocent from a wrongful conviction. Regrettably there is no
way for any judicial system to totally avoid the risk that an innocent
person may be convicted of a crime he/she did not commit. It can
happen in the state court system, in the federal court system and
here in the military court system. That is a fact that anyone charged
with a criminal offense has to contend with if they go to court.
It is a fact I make my clients fully aware of before they walk into
a Court-Martial.
Are there areas in the military justice system that I have qualms
with – yes, without question. As a defense attorney I have
a real problem with a person assigned to a sea going command who
is accused of a crime, but who very well may in fact be innocent,
being subject to the summary disposition of his/her case at Non-Judicial
Punishment (Captain’s Mast). There is no right to refuse Mast
if the person is attached to a sea going command. Although the NJP
proceedings are intended to be a fair hearing, I have seen many
situations where that simply is not the case. Another situation
I have encountered all too frequently is where members in Court-Maritals
or in administrative separation boards seem totally predisposed
against the accused. For example on drug cases, I have run into
members who only need to see the report of a positive urinalysis
– that is all it takes, no matter what the defense says or
does, their mind is made up. That is NOT justice! I have seen an
inexperienced prosecutor floundering in court, only to have an Army
military judge help them out by asking the questions the prosecutor
forgot to ask, or basically telling the prosecutor what evidentiary
rules should be relied upon. I am all for the training of a lawyer,
but not during the course of a trial and at the expense of the accused.
I had an Air Force military judge keep a trial with members after
a full week going until 2100 on a Friday night, start at 0800 on
Saturday and go all day until 2000, and then go all day Sunday from
1300 to 2000. That is hardly conducive to a fair trial for either
side. I have seen the improper influence of rank in our judicial
system, sometimes very subtle, but on other occasions very outright.
I have had cases where my client’s military defense counsel
has been reassigned as a prosecutor after being detailed as a defense
attorney for my client and on one occasion, my client’s detailed
defense attorney was assigned as prosecutor on one of my other cases.
I have seen a couple of aggressive military defense attorneys end
up having problems with their careers, clearly because they had
alienated a senior officer when they were a defense attorney.
In closing, while I feel that the military justice system is very
good, it is in fact subject to its share of problems, as is any
other judicial system. It is crucial that those problems, when the
y do exist, are never allowed to affect the ends of justice.
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