Tuesday, January 29, 2008

Criticism of Article 32 process

NIMJ's web site has posted this Jurist piece by retired Marine Corps judge advocate Neal Puckett recommending reforms to the Article 32 process.

After briefly comparing Article 32s with civilian charging by information or grand jury indictment, Puckett argues that the military system is easy to "manipulate and abuse."

He recommends:
The Art 32 investigation protection against proceeding to trial on baseless charges could be improved by a change to the Manual for Court-Martial (a Presidential Executive Order). The change should require that investigating officer be JAGs except where impracticable and by making the investigating officer’s recommendations binding on the commander in cases where that officer recommends dismissing charges.

He's batting .500. A requirement that where practicable the IO be a judge advocate would improve the system for everyone. But I would not support making the IO's recommendation to dismiss binding on the CA. Why would we trust the judgment of this judge advocate more than that of a general court-martial convening authority acting with the advice of a staff judge advocate? Puckett is concerned about cowardly or politically correct CGs who refer charges for appearance sake. We previously examined here a similar recommendation advanced by Bryan Hayes' article, Strengthening Article 32 to Prevent Politically Motivated Prosecution: Moving Military Justice Back to the Cutting Edge, 19 Regent U.L. Rev. 173 (2006/2007). Hayes would require a military judge to find that an offense is supported by probable cause before it is referred to a general court-martial.

Assuming that there is actually a problem in the current referral process (a question about which I have insufficient information to have an informed opinion), perhaps a better solution would be to amend R.C.M. 907 to authorize the accused post-referral to challenge whether a specification is supported by probable cause. The trial counsel would then have to present sufficient evidence for a prima facie case to the military judge. If the military judge found that the government did not meet its burden, the military judge would dismiss the affected specification or charge without prejudice.


John O'Connor said...

I agree with CAAFlog that it would be an uncommonly bad idea to give IOs the power to bind the GCMCA to dismissal of charges. The Supreme Court observed more than 50 years ago that "judges are not given the task of running the Army." Well, neither are the JAGs.

I've always thought it silly that a commanding officer cannot confine a soldier as a result of an NJP but one of his 22-year-old second lieutenants can throw the same accused in the bring for a month at an SCM, all because the second lieutenant is supposedly applying rules of evidence and court-martial procedures that he could never pretend to understand. Basically, the distinction between SCM powers and NJP powers gives greater power to those with less perspective and less experience to apply it fairly and consistent with the command's needs in terms of good order and discipline.

The same would be true of giving Article 32 IOs the power to bind a GCMCA to dismiss charges. Basically, it would let a captain, often a JAG with little involvement with the operational activities of a line unit, who unlike the GCMCA bears none of the operational and leadership burdens of his decisions, to set the good order and discipline norms for a significantly higher ranking, and more experienced, commander.

Anonymous said...

By the same logic, isn't that argument a broad indictment of the jury system (i.e. only the most qualified should decide guilt and innocence)? While I believe the Art 32 investigation (and military pre-trial discovery in general) provide greater rights then our federal counterpart, I disagree with the concept of an Art 32 "recommendation" rather then a binding determination. The accuser can always re-prefer charges if additional evidence is becomes available after withdrawal of charges post-32. However, a servicemember should not be subject to a trial when a competent authority already found that there was insufficient evidence to proceed forward.

John O'Connor said...

I don't think the jury analogy holds up for two reasons. First, this country has a long tradition of jury trials. Second, in the NJP/SCM/Article 32 scenario, you're talking about concentrating power in one person's hand, instead of a panel. It makes little sense to empower some captain working over at legal assistance, who might have zero experience with line units or the good order and discipline issues inherent therewith, to have the ultimate prosecutorial discretion for a GCMCA.

Anonymous said...

Again, if somehow legal training makes someone more capable of judging the sufficiency of evidence, why does our system of justice specifically not have this as a requirement? Is the layperson jury simply an artifact of history (or as you phrased "tradition"), or a fundamental predicate behind the reliability of a verdict? Moreover, if this "some captain" can't be trusted to give competent advice to another officer at a 32, why should we trust this same individual to give targeting advice, defend a soldier against a capital charge, create a will, etc...?

Anonymous said...

I agree with Col Sullivan and JOC. It makes great sense to have an attorney conduct an Art. 32, but I would not like to see the attorney being able to order the CA to dismiss the charges. Doesn't the Air Force require that a JAG conduct Art. 32 investigations or do they just do it as a matter of course?
(1) Neal Puckett seems to believe that convening authority's have no integrity and can be manipulated, but some captain who performs the investigation cannot. My lengthy experience with convening authority's is considerably different. When it came to military justice, they were all concerned with doing the right legal thing even in the face of political pressure to do otherwise.
(2) Deciding whether to send a case to court is often more than a question of whether the evidence sufficiently supports the charges to send them to trial. It often involves a determination of availability of witnesses, resources, and a determination of whether the case should go to court. I say leave that decision in the hands of the convening authority. That's why he gets the big bucks and was given the command.

Anonymous said...

While I agree with the premise that a CA can fairly and impartially refer charges, why is the 32 officer (JAG or otherwise) not in a better position to determine whether charges should go forward? What about notion of being physically present to judge the credibility of a witness? Again, there is nothing that prohibits an accuser from preferring charges anew and convening a second 32 if charges are "dismissed." The added benefit is additional incentive for the TC to present a more comprehensive case during the Art 32.

Anonymous said...

What if the Government presented a satisfactory case in the first place? To whom would the Government appeal if the IOs determination is believed to be erroneous?

The CA? Wouldn't this, in effect, be the same?

The MJ? Which re-raises the good order and discipline purpose behind having a system of CAs in the first place. If it is a decision that resides entirely within the legal sphere, why go through this drill at all?

I concur in having JAGs serve as IOs, and the disconnect between SCM and NJP authority. But good order and discipline should reside with our Commanders, who are held accountable for making the right the decision, regardless of their JAGs advice.

db cooper said...

I am skeptical about the motives for this article. Neal Puckett is the attorney for Sgt. Frank Wuterich--the supposed "ring leader" in the Haditha cases--and seems to be ignoring the lessons of that very case. If Haditha shows anything, it demonstrates that the Article 32 is no mere rubber stamp. Several accused in the Haditha cases “beat it at the 32,” to include one Marine charged with murder (LCpl Sharratt).

Mr. Pucket was only partially successful for his client. After the 32, Sgt. Wuterich’s murder charges were dialed down to voluntary manslaughter. This article seems like a “sour grapes” attempt by Mr. Puckett to explain why he didn’t beat the case at the 32 entirely, i.e., “I didn’t win because it’s just a kangaroo court.”

Additionally, we don’t need JAGs as 32 IOs in all cases. Sometimes, it’s a good call to have a JAG IO in big cases, e.g., murder cases. But I’ve seen JAG 32 IOs screw things up there too. Sometimes they lack any MJ experience, while other times they have too much MJ experience and get a little too clever for their own good. In less serious cases, e.g. barracks larceny, you might as well stick with regular officers, if only to enhance their understanding of the MJ process.

Anonymous said...

Having seen first hand the lack of authority and ability to make a change in a prosecution foisted on the IO, I gotta wonder, what's the friggin' point? A JAG IO will recommend dismissing some or all charges, have thought out, well-written and cited arguments about why, yet the beat goes on and the accused still faces a GCM. I would wonder if the GCMCA isn't caving to some sort of political or peer pressure to let things continue, even though the person with the best view of things (the IO) has stated that no reason exists to continue.

Maybe the GCMCA's office has a lot of down time...