Resource alert

I stumbled across a couple of military justice articles in recent civilian law reviews. In Strengthening Article 32 to Prevent Politically Motivated Prosecution: Moving Military Justice Back to the Cutting Edge, 19 Regent U.L. Rev. 173 (2006/2007), Brian C. Hayes argues that Article 32 does not protect servicemembers from being tried absent probable cause to believe they committed an offense. He offers examples of what he views as politically motivated courts-martial absent probable cause from Tailhook, Aberdeen, West Point, and the Air Force Academy. He proposes this addition to Article 32:

(b) . . . For each charge and specification, a military judge must determine whether there is probable cause to believe that the offense has been committed and that the subject of the investigation has committed the offense.

If probable cause exists as to any specification, the military judge must inform the convening authority and the accused. The military judge must also make a recommendation to the convening authority as to how to dispose of the case.

The military judge must dismiss any charge or specification that is not supported by probable cause.

Following a dismissal of a charge or specification under this Article, the convening authority may again refer the charge if there is reason to believe that there is additional evidence to justify doing so. The convening authority must then order a new investigation under this Article.

Hayes concludes:

While the military justice system is likely no worse than its civilian counterparts at protecting the accused from unwarranted prosecution, "no worse" is not good enough. By amending Article 32, Congress can grant unsurpassed pretrial protection to the military defendant, and allow the military justice system to once again set the standard for justice and fairness. Such an improvement to the system will inspire the respect and confidence of those in and out of uniform. Americans -- civilian and military -- deserve no less.

In the February 2007 issue of the Minnesota Law Review, Professor D. H. Kaye -- one of the great experts on use of science in the law -- has an exceedingly brief but interesting essay about the abuse of probability theory in the famous French court-martial of Captain Alfred Dreyfus. Revisiting Dreyfus: A More Complete Account of a Trial by Mathematics, 91 Minn. L. Rev. 825 (2007). Those interested in the history of the military justice system, the writings of Emile Zola, or the development of handwriting analysis (which collectively surely describes the entire CAAFlog readership) will enjoy the article.