A fascinating paper about the military death penalty by Army Lieutenant Colonel Eric R. Carpenter is available here.

h/t Phi lCave’s Military Trial Practice blog

16 Responses to “Military death penalty paper”

  1. Gene Fidell says:

    It is an interesting paper, but it was disconcerting to see Judge Wiss referred to as “Justice Wiss” (three times).

  2. John Baker says:

    Ignore Gene’s nitpicking, Eric’s paper is worth reading. We used the CJP materials throughout our motion practice (we plagerized shamelessly from motions Eric had filed in Kruetzer) and when we successfully argued to the MJ to give certain instructions when we defended Walker earlier this year. We also utilized the Colorado method when picking our panel – if only we could convince the MJ’s to let us use it in non-capital cases.

  3. anon says:

    I agree with John, no one likes a sniper Gene. This is an outstanding piece of scholarship on a topic which is more relevant every day with the high profile capital cases in the military.

  4. Anonymous says:

    This is why people don’t like attorneys.

  5. Gene Fidell says:

    Okay, okay — I’m just surprised that none of the 4 reviewers caught the error.

  6. anon says:

    OK Gene will assume your motivation was correct, but why not say that in the original post?

  7. anon says:

    Couldn’t agree more at least take a shot at the logic and reason of the piece!

  8. Look, pal says:

    If the correct title is “Judge,” it’s important to get it right. To gain credibility, you have to get the small things right. Details matter. Shame on you apologists of sloppy work. Bravo, Gene, but don’t back down so easy next time.

  9. anon says:

    Who says its important???? The self-indulgent academics? What about those who will actually put these concepts into practice does it matter to them? Pretty sure the cite clears up any confusion about where Judge Wiss practiced.

  10. Phil Cave says:

    Eric tells me he’s hoping to have this published in the MLR so perhaps the TJAGSA imprimatur may allow for traction on potential procedural changes.

    Oooooops, forgot, have to get it through the JSC. OK, forget it.

  11. Anonymous says:

    Good paper and the defect I picked up was something much different than Mr. Fidell . . . the lack of statistical data on the voting patterns of military panels. I’d love to see some formal study of the psychology of panel members based upon rank, age, gender, combat arms vs. noncombat arms, etc . . . As a former JAG I always felt like I was reliant too much on uniformed biases (combat arms hates barracks thiefs but gives awards for hitting another soldier with a table in a bar fight).

  12. Phil Cave says:

    No no. Single biggest mitigating factor in an Army case is a 300 APFT, regardless of the offenses convicted of.

  13. anon says:

    Now thats the kind of humer we need to start the day!

  14. Another Anon says:

    Go ahead Gene Fidell. Blast the guy for spelling humor wrong…

  15. Anonymous says:

    Agree. Such studies are long overdue. The first step might be replicating the work done with civilian juries, to see whether the findings transfer to military members. Seems like it would be a good project for the JAG schools or an LL.M. student.

    Apart from psychology/dynamics, I’ve always wondered as a simple procedural matter how real life court-martial members actually conduct deliberations and voting on sentences (I suspect most of the times they actually deliberate and vote on the separate elements of the sentence, and not on the sentence as a whole).

  16. Anonymous says:

    by that standard, you shouldn’t miss a comma or it’s “sloppy work,” because after all, details matter.

    At some point, it becomes a lazy way to excuse examining the substantive merits of the writing and instead focusing on minutiae and the fact that almost any long, detailed writing is going to have at least one flaw no matter how many times it is reviewed.