Friday, September 19, 2008

U.S. district judge rejects personal jurisdiction challenge to MEJA prosecution

Steven Green is a former soldier being tried for war crimes in a capital case in the United States District Court for the Western District of Kentucky. He was allegedly involved in the rape of a girl and the murder of the girl and her family in Yousifiyah, Iraq. He was discharged from the Army in May 2006, arrested in Jun 2006, and then indicted on 16 counts in a Military Extraterritorial Jurisdiction Act prosecution.

Courtesy of Gene Fidell, here's a link to the district court's 28 August 2008 memorandum opinion rejecting Mr. Green's challenge to the court's personal jurisdiction to try him. United States v. Green, No. 5:06-CR-19-R (W.D. Ky. Aug. 28, 2008) (mem.).

MEJA provides that "[n]o prosecution may be commenced against a member of the Armed Forces subject to [the UCMJ] under this section unless -- (1) such member ceases to be subject to [the UCMJ]; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to [the UCMJ]." 18 U.S.C. § 3261(d). Mr. Green argued that he had never been properly discharged from the Army and so was ineligible to be prosecuted under MEJA since he was still subject to the UCMJ.

The district court disagreed in an opinion relying heavily on CAAF precedent. It held that the command intended to discharge Green and had actually done so.

4 comments:

Norbert Basil MacLean III said...

A couple of due process and equal protections issues in trying a service member under MEJA vs. UCMJ for an alleged crime committed whilst on active duty.

1) Green will be afforded a jury of twelve and the verdict must be unanimous to convict under MEJA. Had Green been tried under the UCMJ, in the military, the panel of members could have been as few as five and only 2/3 vote to convict.

2) If convicted under MEJA Green will enjoy direct review in the U.S. Court of Appeals and the U.S. Supreme Court (Article III courts). If Green had been convicted under the UCMJ who would have enjoyed review in the Court of Criminal Appeal, discretionary review in CAAF (Article I courts), and only if CAAF granted discretionary review, the possibility of Supreme Court access.

Norbert Basil MacLean III said...

CORRECTION:

Re # 2: meant to say:

If convicted under MEJA Green will enjoy direct review in the U.S. Court of Appeals for the Sixth Circuit (not discretionary review like CAAF)and the right to petition the U.S. Supreme Court (all Article III courts). If Green had been tried and convicted under the UCMJ he would have enjoyed review in the Army Court of Criminal Appeal, discretionary review in CAAF (Article I courts), and only if CAAF granted discretionary review, the possibility of Supreme Court access.

CAAFlog said...

Mr. Green is being tried capitally. If he were to be tried capitally by a court-martial instead, he would generally have the right to at least 12 members on his court-martial panel. See Article 25a, UCMJ.

Christopher Mathews said...

What CAAFlog said.

Moreover, to impose the death penalty, a court-martial would have to unanimously agree as to guilt, aggravation, and sentence.