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Wednesday, September 12, 2007
Insightful commentary about the U.S. military justice system and war crimes trials
Today's Baltimore Sun (or, as it is generally known locally, Sunpapers) published an insightful op-ed by law of war guru, military historian and retired Marine judge advocate Gary Solis (whom I revere). (The op-ed is based on a similar piece by Gary Solis in Monday's L.A. Times.) In addition to making thought provoking observations about the U.S. military justice system's handling of war crimes, the piece delivers the news that charges were dropped against Capt Randy Stone, a judge advocate charged in the Haditha aftermath. Here's a link to the op-ed.
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9 comments:
Didn't LtCol Jordan have military counsel? Quite young military counsel?
To quote Col Solis, "Finally, juries - civilian or military - are unpredictable in their findings of guilt or innocence[.]"
This issue has been beaten to death by Vince Bugliosi, but I'll repeat it here since even the Supreme Court continues to make the same mistake that Col Solis made--criminal trials do not decide innocence! Ever! The sole determination is whether the prosecution has proven the charge(s) beyond a reasonable doubt.
CAAF makes this mistake in the very first sentence of US v. Dearing, 63 M.J. 478, stating that, "It is a 'basic rule that instructions must be sufficient to provide necessary guideposts for an 'informed deliberation' on the guilt or innocence of the accused.'"
Wrong. Instructions should never provide guideposts on the deliberation on the innocence of the accused, and the Benchbook does not. Any instruction hinting that innocence was at issue would shift the burden, and start the jury thinking about whether the defense proved the accused innocent, rather than whether the prosecution proved guilt. (Whether jury instructions should be more explicit on this point--that not guilty is not the same as innocent--is still an open question. See, e.g., www.juryinstruction.com/article_section/
articles/article_archive/article10.htm)
Granted, Dearing was about whether the judge erred in not giving certain self-defense instructions, but the point stands. Self-defense negates guilt, and as a result the gov't has the burden to prove beyond a reasonable doubt that the defense does not exist. Defenses don't prove innocence, they negate guilt.
This horse is now dead, on to the next one.
LTC Jordan was represented by three military defense counsel; a senior reservist major who is a criminal defense attorney in private practice, a senior reservist captain who is an assistant district attorney in civilian life, and a junior active duty captain.
Speaking of the Jordan trial, was the prosecution really as inept as portrayed in the media? Or, were they doomed from the get-go by a stubborn CA deciding to go to trial no matter what?
Here's a novel idea: Maybe these people were acquitted because the government failed to prove their case. Rather than casting aspersions on the system because these people were acquitted, perhaps our anger should be directed at TC who bring these cases to trial in spite of flimsy evidence.
Regarding the Jordan prosecution, my understanding is they were not that incompetent but there were a few noticeable flubs. The problem the Army and the CA had is that the original Abu Ghraib prosecution team recommended Article 15 for the case. TCAP did a similar recommendation. Rumor has it the OSJA also recommended Article 15. This case had two CAs (the one who started the process and, I believe, got it through the 32 stage and to referral; and the one who was CA post-referral and during the amended convening order process). The first CA wanted the case to go to trial. The second CA wasn't willing to stop the process once it was in motion.
As to the ineptitude of the prosecution, at the end of the trial, the MJ made a statement on the record addressing the case stating both sides advocated well and that media portrayals of the trial were incorrect if they believed he was partial to one side more than another.
In addition, right or wrong, the decision to go forward with a court-martial was made when the charge sheet had a slew of false statement charges. I have no idea about the merits of those charges as a matter of fact, but the prosecution didn't find out until a day before trial that MG Fay had concluded (contrary to his prior testimony) that he had not read LTC Jordan his rights. I have no idea if the CA would have viewed the charges differently had the false statement charges been out of the case at the time the referral decision was made.
A brief response to the comment posted by "Anonymous" is warranted. Anonymous states, "This issue has been beaten to death by Vince Bugliosi, but I'll repeat it here since even the Supreme Court continues to make the same mistake that Col Solis made--criminal trials do not decide innocence! Ever! The sole determination is whether the prosecution has proven the charge(s) beyond a reasonable doubt." I do not know whether Dr. Solis wrote the guilt or innocence language "as is," for this Op-Ed or whether it was edited this way. Regardless, newspapers frequently have different stylistic rules and use this language to avoid being sued for any mistake that drops the word "not" before the word "guilty" in a reporting of "not guilty." The media's use of "innocence" in place of "not guilty" frequently chafes those who practice law, but is typical in the profession of journalism. I think we all recognize that the profession of journalism is not the profession of law, despite the fact that both are noble callings. This explains, however, why newpapers,magazines, and television programs report using this language even though those who practice law recognize the distinction.
Building on what Kathleen just posted, I have been told that journalists are taught to avoid using the term "now" because it is a common typo to change that word into "not," which completely changes the meaning of the sentence.
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