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Thursday, May 14, 2009
Coast Guard trial judge moots Article 120 challenge by deciding to give Military Judges' Benchbook instruction
Here is a Coast Guard trial judge's ruling denying a defense challenge to the new Article 120, but deciding to give the instruction recommended by the Military Judges' Benchbook, which "moots the concerns raised by the defense."
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The benchbook appears to ignore fairly unambiguous language in Article 120. And I'm sure many trial judges are blindly following the benchbook; but the last time I checked, the Army doesn't have the authority to ignore congressional statutes. And as far as trial judges, the statute clearly has some potential problems, but they similarly lack the authority to ignore statutory language unless they rule it unconstitutional.
The Navy trial judges have ruled the statute unconstitutional, only to be overturned by NMCCA, and the other services are presumably ignoring -- the law -- and instructing members on what they think the law should be. If no trial judges out there have the moxy to see a court-martial through to the end, and instruct the members on the law -- as written in the statute -- the appellate courts will never be able to determine if the statute is actually constitutional.
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